In this article, Tushnet and Keller define parody and satire, and how such strict definitions can lead to problems. Like Long, they argue that such a clear definition can allow the court to almost choose which genre the works fall under, and therefore indirectly suppress what works are allowable. They go through a history of cases, including copyright and trademark, but I will concentrate on copyright as specifically relating to my project.

Therefore, Tushnet and Keller argue that the current mutually exclusive definitions of parody and satire should be forgotten. Instead, it is the critical insights that should be examined, without judging the merits of those insights the way parody or satire might. Otherwise, parody is favored unfairly over satire, suppressing one form of expression and promoting the other, which is not the purpose of the copyright laws.

In this article, Adriana Collado summarizes the distinction between parody and satire and the interpretation of this difference in fair use cases over time. Collado goes on to discuss the present state of the law, what the law should be, and possible solutions and compromises for satire, which is not currently mostly included under fair use provisions.

However, Collado also argues that by Supreme Court's own definition of fair use works ("for purposes such as criticism [and] comment"), satire should already been included. Satire has been defined as a commentary or critical work, one of the uses specifically enumerated in the Fair Use Doctrine, so it should technically be protected.

Since satire is currently not included under fair use, Collado discusses potential solutions and compromises, although none are very promising. Collado quotes Tom W. Bell, who suggests that copyright owners and secondary users should be able to opt out of copyright law and contract under a fared use system, although he fails to mention what would happen for satirists if copyright owners refuse to license (which would probably happen due to the self-esteem issue). Collado adds another possibility of courts requiring unauthorized satirists to pay copyright holders for actual damages sustained from the use of the copyrighted work, but understands that such a method might still dissuade satirists who cannot predict such a number in advance.

This blog on fair use, written by law professor Peter Friedman, covers many elements of fair use, including satire and parody. This page deals specifically with blog entries covering satire and fair use, including an excerpt from Andrew S. Long's "Mashed Up Videos and Broken Down Copyright," written for the Oklahoma Law Review. Friedman discusses how parody has more extensive coverage than satire under fair use, including the recent example of Little Brown's Good Night, Moon. Similarly to Dr. Juice's satire on The Cat and the Hat and the O.J. Simpson murder trial, this book will probably not be defensable under fair use due to its satiric rather than parodic nature.

Long's article includes a section on the effect os the parody-satire distinction, which discusses the confusion similar to Bridy's article about hybrids of satire and parody. Long even suggests that "this seemingly arbitrary distinction allows judges to find parody when it suits the results the wish to achieve." Hardly a promotion of progess that the Copyright Act is supposed to protect. Long also argues that the distinction between satire and parody ignores that satire must also transform the original work, which adds new, transformative meaning.

Michael Einhorn, Ph.D., suggests that licensing arbitration is preferable to the existing "all or nothing" method of fair use that currently exists for works that add new interpretation to existing works (ie parody and satire). If we vacate such rules, Einhorn argues, owners of intellectual property would be guaranteed compensation, producer incentives are great without the worries of punitive uncertainites, and collecting societies and licensing agents may emerge when tradable rights are defined. These would perhaps more effectively promote the progress of arts and sciences that the copyright laws are designed to do.

This argument follows Judge Kozinski's argument about changing the rules for satire, and not trying to apply fair use to the genre. Otherwise, the two options are too extreme: one party ends up getting the worst end of the deal, and the other party walks away almost unscathed.

Judge Kozinski delivered a lecture for the 1999 Donald C. Brace Memorial at Fordham University School of Law on November 11, 1999. His speech was published in the Journal of the Copyright Society of the USA in the summer of 1999.

In this speech, Kozinski addresses one of the controversial decisions of his court, the Ninth Circuit, about the case Dr. Seuss Enterprises v. Penguin Books. Penguin published a book about the O.J. Simpson trial, which was illustrated and wirtten to resemble a Dr. Seuss picture book. The Court ruled that Penguin's book was not fair use because it was satire rather than parody, meaning that it did not comment on Dr. Seuss's book but only used it as a springboard to comment on the O.J. Simpson trial.

Judge Kozinski, however, indicates that had he delivered the decision, it might have been different; although he does not want to criticize his colleagues, he doubts he "would have decided the case the same way." He examines the tradition of fair use theory in dealing with intellectual property, questioning when its protection starts to defeat the purpose of having it.

The most relevant part of his speech to my topic is when he discusses the importance of form to satire, even if the satire does not necessarily comment on the original work. As Supreme Court pointed out, restraining the form suppresses content; furthermore, he argues with the Supreme Court's decision in Campbell v. Acuff-Rose, who claimed that satire attempts to avoid the drudgery in working up something fresh. Instead, it takes "some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for." The satirist cannot latch onto any work to achieve their purpose, either, because something about the original fits or doesn't fit the subject.

Lastly, Judge Kozinski points out that our fair use laws leave something to be desired: either we deny fair use and enjoin the work out of existence, or we claim fair use and the work remains and the copyright owner has to pay the attorney fees. He suggests a remedy outside of the fair use doctrine, a question of appropriate remedy rather than fair use. In the end, the effect would be to "strip copyright owners of their right to control the uses to which their work is put, while strengthening their right to demand compensation for the value they create."

In this journal article, Annemarie Bridy discusses the history of satire and parody throughout a variety of cases, concentrating especially on the Campbell case. She argues that Justice Souter's decision entitles parodists more than satirists when deciding how much and what kind of borrowing is appropriate for fair use arguments. So, what happens when a parodic work "shades into satire?" Is it no longer classifiable and therefore defensible as a parody?

In order to answer this question, Bridy draws upon literary theory and the distinction of "indirect satire" and "direct satire" to argue that some satire (direct) is definitely not permissible under fair use, but others (indirect) should be. As is, the definitions of parody and satire seem to be mutually exclusive, which can draw unfair consequences for indirect parody. Instead of employing such a distinct definition between satire and parody, she argues that the distinction should be drawn between two types of satirical parody, eliminating the problems that result from a hybrid of satire and parody.

Daniel Green discusses the statuses of parody and satire under current Supreme Court guidance, including the uncertainity and variance among courts. He argues that satire is unequivocally the underprivileged of the two for fair use cases, although it is allowed in certain circumstances. For his article, he had three purposes: to differentiate between parody and satire, to prove that protection for satire under fair use is important for both copyright law and the First Amendment, and to recommend some methods to incorporate this view while leaving all current precedent (although his methods may be a bit extreme, due to his satire of Gulliver's "A Modest Proposal."

One of his crucial arguments occurs when he discusses the Dr. Seuss Enterprises v. Penguin books case. Green argues that the Court overly criticized the satirist because the satirist followed traditional satire, and that his point of transposing the childish style and moral content to the world of adult concerns was an important juxtaposition. It is difficult to conceive The Cat NOT in the Hat! harming Dr. Seuss Enterprises because the books appeal to entirely different markets; only because the book was satirical did it not earn protection.  Satire is still a valuable social criticism, just like parody.

Green goes on to outline five more guidelines that should be used to determine fair use, including subjective intent of infringer, manifested effects on  the market, injury, "value" of the satire, and relevance or necessity of appropriated work to the satire. This way, perhaps, satirists will be able to deliver their modest (or perhaps not so modest) proposals without having to become parodists.

In this 1986 Court case, Marvin Fisher and Jack Segal brought a suit against Rick Dees for infringing their song "When Sunny Gets Blue" with a parody song entitled "When Sonny Sniffs Glue." Besides infringement, they claimed unfair competition, defamation, and product disparagement. The Court decided that Rick Dees did indeed deserve fair-use protection because it was a parody.

The important points in this case are that every instance of parody defense must be considered individually, that a humorous or satiric work deserves protection only if the copied work is at least partly the target of the work in question, and that parodists will seldom get permission from those whose works are parodied. As they state, "The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought" since "[s]elf-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee." I would argue that the same is true of satires, even if they do not specifically comment on the original work, so they also need some form of protection or compromise for when the rights are denied. This follows Judge Kozinski's logic, so that satires are not stifled simply due to the nature of their work.

Acuff-Rose Music, Inc. filed suit against the members of the rap music group 2 Live Crew and company, claiming that 2 Live Crew's song "Pretty Woman" infringed their copyright in Roy Orbinson's rock ballad, "Oh Pretty Woman." Supreme Court ruled that 2 Live Crew did not infringe on "Oh Pretty Woman" because their song was a parody, and did in fact fall under the fair use clause.

This 1994 case is extremely important to my topic because it was one of the first to differentiate between satire and parody and how they deal with fair use. According to the Supreme Court's definition, parody is "the use of some elements of a prior author's composition to create one that, at least in part, comments on that author's work." It counts as fair use due to its critical nature. If the commentary "has no critical bearing on the substance or style of the original composition," on the other hand, it is satire, which does not have the same protection. In the Supreme Court's mind, satire should be able to stand on its own, and borrowing of another work is just to "avoid the drudgery of working up something fresh."

The most interesting aspect, however, is footnote 14, which allows that satire may in certain circumstances also fall under fair use (although these circumstances are much more narrow than for parody) if "there is little or no risk of market substitution."

In this case, Jeff Koons used Art Roger's photographs of his wife and eight puppies to create a group of 20 sculptures for a 1988 exhibition. Koons acknowledged that his source matieral was a notecard of Roger's "Puppies." Not only did he use Roger's idea, he also copied the expression: the composition, the poses, and the expressions. Koons claims that his work is fair use because he argues that "his scuplture is a satire or parody of soceity at large. He insists that 'String of Puppies' is a fair social criticism." The Court, however, ruled against him, saying that it does not comment on the original work.

For my essay, I will highlight the discussion on satire and parody. The Court agrees that both are "valued forms of criticism" and foster more creativity protected by copyright law. However, the Court also argues that the parody or satire must comment on the original work or there would be no limitation to fair use; credit must be given to the original work. The Court does not prevent Koon's expression, but says that Koon must recognize any such exploitation requires "paying the customary price." I agree with this assesment, and wonder if satire could somehow incorporate acknowledgment of its source, could it be treated more similarly to parody, ie as applicable to the fair use clause?

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

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

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

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

Vanderbilt University – Law School

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

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

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

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

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

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

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

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

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

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

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

Jason Breen – UCLA School of Law

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

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

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

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

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

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

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

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

Lexis Nexis
March 13, 2007 Tuesday 3:53 PM EST
Viacom sues YouTube for $1 billion, citing 'massive' infringement

BYLINE: Ben Charny, MarketWatch mailto:bcharny@marketwatch.com.

Ben Charny is a MarketWatch reporter based in San Francisco.

Lexis Nexis Article

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

BYLINE: Natali Del Conte Natali_DelConte@ziffdavis.com

SECTION: NEWS AND ANALYSIS

LENGTH: 856 words

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

Copyright Notice that Youtube posts for its Users.