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

Haubenrich, John.  "The iPhone and the DMCA: Locking the Hands of Consumers."  Vanderbilt Law Review.  Vol. 61.5 (2008) 1507-1553.

Haubenrich delves into the role that the Digital Millennium Copyright Act (DMCA) plays in the debate regarding the unlocking of iPhones and the resulting user experience.  The article first provides a background into the DMCA regulations and the effect that it has on the wireless phone industry.  It offers that, on one hand, iPhone users expect complete ownership of their devices as well as their choice of network.  However, wireless providers and product designers like Apple want to protect their copyright and maintain their successful business in the wireless industry.  The note comes out on the side of the consumer when it argues that the question of cell phone unlocking should not be addressed by copyright policy.  In conclusion, the author calls upon Congress and scholars to examine telecommunication law to resolve the rights relating to locks on mobile phones.  The argument is that without these barriers from wireless providers, there will be a better network, more innovation and more competition, which will benefit all mobile phone users.

The DMCA is one of the most important pieces of copyright legislation and its implementation plays an important role in technology policy.  By acknowledging the iPhone locks are not an appropriate use of this policy, this legal expert urges consumers to have greater control over their wireless device.  Many iPhone applications are accessible only through the unlocking or jailbreaking of one's iPhone.  Because all apps need to be officially sanctioned by Apple to be in the app store, anything not sanctioned must be downloaded illegally.  For instance, the iPhone has a camera but no available video camera app.  By jailbreaking one's phone, a user can download this kind of app and proceed to use their phone for this new purpose.  This note relates to Wu's idea of the Wireless Carterfone because the separation of the iPhone from the DMCA regulations parallels Wu's frustration with network attachments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This paper discusses different perverse consequences of the DMCA.  Lee says that when Congress was trying to prepare for new digital technology, it made a mistake.  When the DMCA was passed, the courts were cut out of its role.  The universal band on technology and devices that “circumvent” digital rights management technologies (DRM) leave no role for the courts.  This lack of balance has created a system for consumers with limited options. The copyright owners now completely control things like Internet streaming and playback devices.  There is even evidence of certain firms utilizing the DMCA as a means of stopping research and reverse engineering.  

The DMCA also eliminates competition.  The copyright owners and companies that issue their content have the power the lock out competitors.  Also, digital rights management technologies tend to be ineffective and do little to stop pirates.  Instead DRM technologies make it harder for people making fair use out of the copyrighted work.

The paper says that there were in fact legal happenings in play before the DMCA enactment.  These legal processes were leading to a balanced body of law that would involve the courts.  Consumer choice, fair use, and competition would not be decreased as they are with the DMCA.  The budding body of law would give rights back to the people instead of depending on the technology design.  Really, without the DMCA we would be okay.  

Lee says that people should not have to worry about coming out with a new technology and getting sued because it is illegal according to the DMCA.  That undermines the goals of copyright.  This is a key point of my paper.  This article is extremely helpful in arguing my case.  The effects of the DMCA decrease consumer rights and options.  It also stifles creativity.  No one wants to come up with new technology wondering if they’re going to get sued for it.

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

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

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

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

 

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

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

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

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

This post is from 2004 and discusses the proposed amendment to the DMCA at the time.  The proposed bill, H.R. 107, would make it a requirement for a clear label on copy-protected discs.  It would also become illegal to circumvent the copy-protected disc unless outlined as an exemption.

The article brings a very interesting aspect to my paper.  It looks at the opinions of the actual musicians and songwriters.  Instead of looking at the people who would be infringing on copyright, the article looks at people who own the copyrighted works.  In 2004, the Pew Internet Project conducted an online survey.  The survey asked about 2,755 songwriters and musicians questions such as,

How do you feel about the use of copy-protection technology on CDs?
Answers were split almost evenly.  About 44% answered that if they had the option, they would like their CDs to have this technology.  44% answered the opposite.  The remaining 12% answered, “I do not know.”

How do you feel about intentionally breaking or circumventing copy protection technology on purchased discs?
46% of musicians and songwriters answered that there should be no type of prosecution for infringement in this situation
35% answered that yes prosecution is appropriate
19% answered, “I do not know.”

This research survey will be used in my paper as support for my claim that infringement penalties are too harsh.  Also, the other perspective from musicians and songwriters add a different spin.  If the majority of those who own the copyright work are against prosecution then why are penalties so severe?

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

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

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

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

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

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

 

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

 

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

 

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

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

2. Gatekeepers are abusing take down notice rights

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

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

This is a summary of frequently asked questions about the DMCA.  It defines the DMCA, and explains how it affects things like security testing, encryption researchers, and the first sale doctrine among other things.  There are a few questions answered that are important for my paper. 

What is the controversy surrounding the DMCA? With the transition to the digital age, there must also be a shift with the protection for artists and creators of copyrighted works.  Now with the creation of “digital locks” to protect copyrighted materials online, fair use is in danger.  The DMCA makes it illegal to break the “digital locks.”  This undermines the right to fair use of the copyrighted works on the worldwide net.  Exceptions to the DMCA law are very specific and so the activities for most of us are quite limited.  There are various technological protection methods that are already being used on things like DVDs, websites with password protection, etc.  Technology that restricts interaction with a copyrighted material is an access control.  An encryption on a DVD is a perfect example.  The DMCA makes it illegal to circumvent an access control.  A copy control is technology that controls copying of a copyrighted material.  The DMCA says that providing means for others to circumvent copy controls is illegal.  But actually circumventing copy controls is not illegal under the DMCA.  This information about the specifics of the DMCA are important for my paper.  I will need to thoroughly explain all the provisions of the DMCA to discuss specifically why it stifles progress and creativity.

What are the affects the DMCA will have on the general public?  What does the DMCA mean for people like you and me?
The average public is one group missing from the exemptions of the DMCA.  The only exemptions that affect people like me are
a)    Privacy exemption→ technology that is used for collecting personal information
b)    Technology used to block minors from inappropriate websites
The other exemptions include that do not directly affect the general public are for libraries, encryption research, reverse engineering for development of programs, law enforcement, intelligence purposes, education institutions, and security testing.

I plan to discuss the serious implications that this will have on the goals of copyright, to foster creativity and progress. Specifically, how the DMCA goes against the goals of copyright and violate the right to fair use. 

 

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

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

This is a ruling by US Customs and Border Protection in 2001 on whether or not the GB Flash Advance Linker violated the DMCA (if it did, then CBP would not allow the device the pass through customs). The GB Flash Advance Linker serves two basic purposes. The first is basically a blank Game Boy Advance cartridge on which the consumer can load data. This cartridge can then be played in a normal Game Boy Advance. While homebrew or public domain games could be loaded onto these cartridges, most often illegally downloaded ROMs were placed on them. The second, and more important, is to make a copy of a Game Boy Advance cartridge and store it on a PC. Nintendo, naturally, wanted CBP to stop this product from entering the United States. CBP noted that the DMCA prevents the importing of devices that are primarily for circumventing protection, have limited use outside of circumventing protection, and are marketed with the explicit knowledge of their circumvention capabilities. The floppy disk that comes with the device (and installs the necessary software) is simply used to provide the Nintendo boot up code, clearly signifying the intent to bypass protection. Then, the device illegally copies the cartridge data to flash, and then to a PC. Therefore, CBP decided that the GB Flash Advance Linker violates the DMCA.

The ruling makes perfect sense. Clearly the Game Boy Advance cartridge has a form of copy protection on it (although a weird one, as described in the ruling), and this device was created and sold with the intention of bypassing that protection. Obviously this violates the DMCA. The problem here is that this ruling effectively leaves no legal way to create a backup of a legitimately owned video game. If any attempt to back up the video game data breaks the DMCA, then how can backups be created? If I want a backup of my video game, to be used in the event of damage to the original, how would I go about getting it? Petition Nintendo? The other major problem with this ruling is that there do seem to be a few legitimate uses of this device, most notably concerning homebrew games. If a consumer creates his or her own video game for the Game Boy Advance, then how could they move it to a cartridge playable on the actual system? In essence, once one has created his or her own game, it is unplayable on the system that they designed it for. Unfortunately, there seems to be no way around this problem. Nintendo, in going after this device, clearly indicates that it wants complete control over how its games are used and copied. Basically, Nintendo does not want consumers to have the ability to make backup copies (which are allowed by law) or create homebrew games.

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

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

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

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

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

Vanderbilt University – Law School

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

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

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

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

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

 

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

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

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

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

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

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

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

Jason Breen – UCLA School of Law

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

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

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

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

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

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

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

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

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

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

 

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

This memorandum summarizes briefly each title of the DMCA; it provides an overview of the law’s provisions although for purposes of length and readability a significant amount of detail has been omitted.  Overall, it renders the more technical language and organization of the law itself into a much more straightforward form.  The Digital Millennium Copyright Act (DMCA) is a United States copyright law, created by the Copyright Office,  which implements two 1996 treaties of the World Intellectual Property Organization.  The DMCA was created as a way for copyright law to be adapted to the questions raised by digital technologies.  The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the infamous "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.).   Another section of the law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses, which require circumvention of encryption.

Under the Clinton administration, the DMCA was passed in an attempt by congress to address emerging digital technological advances that threatened copyrighted material.  American copyright laws were quickly becoming outdated and often useless.  Thus, Congress decided to move these areas of legislation into the digital age. The DMCA put a ban on any implement (both physical instrument and software) whose intended function was the circumvention of copyright safeguards. This legislation targeted devices such as VCRs, but focused mainly upon burgeoning internet technology such as peer-to-peer clients. DMCA Title II, for example, provides safe harbor to Internet Service Providers that comply and adhere to copyright guidelines, and agree to block the access of users who are shown to be committing copyright infringement.

This memorandum is extremely valuable to my overall project because the DMCA is an essential element in the MPAA’s campaigns against cinematic piracy and copyright infringement.  The DMCA provides the guidelines for piracy and digital technologies and therefore this memorandum will be a crucial asset to the basis of my final paper.

 

 

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.

SECTION: NEWS & COMMENTARY; Technology

LENGTH: 918 words

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

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

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

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

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

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

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

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

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

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.

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

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

Lexis Nexis Article

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

BYLINE: Natali Del Conte Natali_DelConte@ziffdavis.com

SECTION: NEWS AND ANALYSIS

LENGTH: 856 words

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

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

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

Copyright Notice that Youtube posts for its Users.

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

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

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

    This article written by Lawrence Lessig, a professor at Stanford University, sees Viacom’s lawsuit against YouTube as preempting Congress’ preeminent role in determining copyright law.  Lessig cites to case law and the Constitution to conclude that sound policy and history support deference to Congress when major technological innovations alter the market for copyrighted material.  He opines that Viacom is trying to play an end run around Congress and the 1998 Digital Millennium Copyright Act (“DMCA”) with its lawsuit against YouTube. 

    He explains that the DMCA was intended to protect copyright owners while making it possible for internet service providers to avoid crippling copyright liability.  It achieved this result by immunizing the internet service provider from liability for infringing material posted by its users as long as it removed the infringing material upon notice by the copyright holder.  According to Lessig’s article, the statute expressly places the burden of policing content on the copyright holder and not on internet service providers like YouTube.  Through its complaint, Viacom is trying to shift that burden onto YouTube. 

    Lessig claims that Viacom, not satisfied with a Congressional statute, is turning to the courts to “update the law.”  According to this article, it is not the role of the courts, but rather the role of Congress to modify the DMCA’s safe harbor provision.  He states that Viacom’s lawsuit will result in the internet facing years of uncertainty in litigation and possibly undermining the intent of Congress to forge a cooperative relationship between copyright holders and online service providers through the DMCA’s statutory framework. 

    The underlying assumption in this article is that YouTube will have a valid defense under the DMCA to Viacom's claims of infringement.  This paper will critically analyze Lessig's fundamental assumption that the DMCA provides a viable defense for YouTube.  An important part of this analysis will be Lessig's argument that the court should defer to Congress.  Specifically, the paper will keep in mind Congress' intent in enacting the DMCA and its balancing of the rights of copyright holders with the need to protect internet service providers who are the pioneers of an emerging means of communication.

       This article written by Fred von Lohmann, attorney with the Electronic Frontier Foundation, examines how YouTube would fare under the copyright law and, in particular, the Digital Millennium Copyright Act (“DMCA”).  According to the author, the stakes are tremendous because YouTube’s website hosts infringing copyrighted material but it also facilitates the free flow of information and spawns original and transformative creativity.  The author opines that in light of YouTube’s business operations it legally should be shielded by the safe harbor provisions of the DMCA.  However, he cautions that YouTube must continue to walk a careful line so as not to run afoul of the safe harbor requirements.

       The article examines several of the DMCA’s requirements mandated by Congress.  First, the author examines YouTube’s policy in implementing the termination of repeat infringers and the removal of infringing content.  He concludes that YouTube’s written policy and implementation meet the DMCA’s requirements concerning termination, as well as notice and take-down.  Second, the author finds no obvious pirate sites on YouTube which is an important factor in analyzing the knowledge requirement.  Third, in examining the direct financial benefit test, Mr. von Lohmann explains that it represents an important hurdle for service providers.  In the case of YouTube, he finds that it has chartered a cautious course by putting advertising only on search result pages rather than on the clip pages themselves.  He suggests, however, that YouTube may feel increasing pressure to develop innovative business opportunities other than by limiting the placement of advertising on its website.  In that regard, YouTube will have to experiment with different revenue strategies that do not run afoul of the DMCA. 

       For purposes of my paper, this article provides valuable information on YouTube's business operations.  According to the author, YouTube largely complies with the requirements mandated by the DMCA, but the financial benefit test could be problematic for it.  In determining whether YouTube should successfully meet the requirements of the DMCA, an examination of YouTube's operations will be critical and this article will be helpful in that regard.

       This law review article written by Jason Breen from the UCLA School of Law analyzes YouTube’s defenses to the Viacom lawsuit and, in particular, the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).  The article examines each of the requirements mandated by the DMCA and how those requirements have been interpreted by the courts.  It also points out where some of the court decisions appear to be inconsistent. 

       This article examines requirements of the DMCA that YouTube must meet in order to qualify for safe harbor protection.  First, the author reviews whether YouTube accommodates “standard technical measures” used by copyright owners to identify their copyrighted works as required by section 512(i) of the DMCA.  Second, as the protections of the DMCA are only available to qualified service providers, this article examines whether YouTube will qualify as a service provider and notes that the courts have broadly interpreted this provision.  Third, YouTube must establish that it does not have actual or apparent knowledge of the infringing material.  By providing a plethora of cases, the article concludes that the high standard of proving the provider has the requisite knowledge would likely weigh in YouTube’s favor.  Fourth, according to the article, a more difficult hurdle for YouTube to meet is the requirement that YouTube not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity.  The article points out two conflicting lines of judicial reasoning regarding this two-part test.  Using citations provided by this author and after reading several of these cases (some of which are included in this Annotated Bibliography), I can address in my paper how these conflicting theories might impact YouTube’s defense under the DMCA. 

       The author concludes that it is likely but far from certain that YouTube will be able to avail itself of the DMCA’s safe harbor in light of the uncertainties in the law and factual questions as to YouTube’s operations.  This article is helpful in analyzing YouTube’s operations, Viacom’s allegations, and in providing citations to court decisions which I will read and apply to the facts of this lawsuit in order to make my own judgment as to whether YouTube should prevail under the safe harbor provision of the DMCA.

In March 2007, Viacom filed a lawsuit against YouTube based on YouTube's direct and secondary infringement of Viacom's copyrighted material. YouTube denied Viacom's allegations and argued that it is protected under the 1998 Digital Millennium Copyright Act (DMCA) which Congress promulgated to provide a safe harbor to shield on line service providers from monetary damages or injunctions for infringing material posted by their users. In enacting the DMCA's safe harbor provision, Congress devised a statutory framework in which copyright holders and service providers could cooperate, thereby maximizing creativity - an underlying goal of copyright law. The Viacom lawsuit sets the stage for a battle between copyright holders and service providers of user generated content. Thrust into the middle of this battle is the court which must determine whether YouTube meets the requirements of the DMCA's safe harbor provision. My paper will address the question of whether or not YouTube will meet the requirements of the DMCA's safe harbor provision, taking into account Viacom's arguments and YouTube's counter arguments as applied to the statute's language and legislative history and the surrounding case law.

       This law review article analyzes whether or not YouTube will be able to defend itself against Viacom’s claim of copyright infringement under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).  The author examines the case law concerning the specific requirements of the DMCA including: 1) qualifying as a service provider; 2) the actual or apparent knowledge test; 3) the direct financial benefit test; and 4) the ability to control the infringing activity test.

       What is particularly helpful to my paper is that the author provides extensive information on YouTube’s business operations.  The article details the automated and user generated nature of YouTube’s site which is relevant to the DMCA’s knowledge and control tests.  It also provides a discussion of how YouTube generates revenue.  An analysis of YouTube’s revenue stream is relevant to the financial benefits test required under the DMCA.  The article’s discussion of YouTube’s business will be relevant to analyzing whether YouTube should meet the DMCA threshold and core requirements, which are fact dependent.

       The author opines that the site’s easy to use technology provides a ready platform for showcasing original and transformative videos.  Against this backdrop of user creativity, it is clear that YouTube’s website also contains unauthorized copyrighted works.  However, the author provides evidence of YouTube’s good faith efforts to run a legitimate business not premised on the unauthorized use of copyrighted works.  Such information is pertinent to an overall sense as to whether YouTube’s purpose is to simply pirate other companies’ videos or to provide a venue for sharing new and original video content.

       The author concludes that given the uncertainties surrounding how the court may interpret the various requirements of the DMCA, it is unclear whether YouTube will be afforded safe harbor protection.  For the purpose of my paper, this article will be helpful in providing factual information as well as citations to various court decisions which I will read and analyze so that I can reach my own conclusions concerning the application of the DMCA to YouTube.

       In this case, Corbis, the owner of copyrighted photographs, sued Amazon.com for copyright infringement after several of Corbis’ photographs, without its consent, appeared on third party vendor platforms hosted by Amazon.com.  Amazon.com’s primary defense was that it is protected from liability for the alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”).  Thus, the Corbis case is pertinent to my analysis in that many of the issues facing YouTube in meeting the requirements of the DMCA were addressed in this case. 

       The Corbis court addressed the DMCA’s requirements that the service provider 1) not have actual or apparent knowledge of the infringing activity and 2) not have the ability to control the content of users’ postings.  The Corbis court ruled that actual knowledge requires that the copyright holder provide evidence that it notified the service provider of the specific infringing material.  The court also found that Congress contemplated that apparent knowledge of infringing activity requires that the service provider turn a blind eye to red flags of “pirate sites.”  For purposes of my paper, the extent to which user sites are obviously infringing will be critical to the application of the knowledge test. 

       The Corbis court also amplified the DMCA’s right and ability to control test.  It explained that the ability to control the infringing activity cannot simply mean the ability of the service provider to remove or block access to materials posted on its website or stored in its system.  According to the court, there must be some level of active involvement with content decisions.  In the case of YouTube, its screening techniques and its technology for identifying and removing infringing videos will be relevant to determine whether YouTube runs afoul of this requirement.

       Whether or not YouTube satisfies the requirements of the DMCA, including its level of knowledge and the ability to control infringing activity, will be fact dependent.  However, the court’s analysis in Corbis and its discussion of the DMCA’s legislative history will be helpful in applying the facts of the YouTube litigation to the law.

       In denying Viacom’s allegations of direct and secondary copyright infringement, YouTube will seek to obtain the protection of the safe harbor provisions of the 1998 Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512.  A finding that YouTube satisfies the DMCA’s safe harbor requirements would immunize it from monetary damages or injunctions even if it were found to have directly or secondarily violated the copyright laws.  The statute explicitly mandates a series of threshold requirements (17 U.S.C. 512(i)) and core requirements (17 U.S.C. 512(c)(1)) that a service provider must meet to be entitled to safe harbor protection.  Most problematic for YouTube will be whether it meets the DMCA’s core requirements under section 512(c)(1)(A),(B), and (C).  Subpart A requires that the service provider not have actual or apparent knowledge that the material on its network infringes on the rights of a copyright holder.  The legislative history will be examined to determine the scope of “apparent knowledge” including an examination of the “red flag” test stated in the Congressional Reports dealing with the DMCA.  Subpart B requires that the service provider not receive a financial benefit directly attributable to the infringing activity where it has the right and ability to control such activity.  Of critical importance to Subpart B will be YouTube’s business model for generating revenue from advertisements.  Subpart C requires the service provider, upon notification by the copyright holder of claimed infringement on its website, respond “expeditiously to remove” the infringing work.  Both Viacom’s arguments and YouTube’s counter arguments will be examined in an effort to determine whether YouTube’s removal policy conforms to the DMCA requirements.

       My paper will address some of the conflicting cases that have examined the various sections of the DMCA described above and rely on the legislative history at H.R. Rep. No. 105-551 (1998) and S. Rep. No. 105-190 (1998) to amplify congressional intent.  Critical to my analysis will be the application of the facts of this lawsuit to the language of the DMCA, taking into account its legislative history, to determine whether YouTube should meet the requirements of the DMCA’s safe harbor provision.

       This article written by Michael Fricklas, general counsel at Viacom, sets forth Viacom’s legal and factual arguments supporting its position that YouTube should not be afforded safe harbor protection under the Digital Millennium Copyright Act (“DMCA”).  First, he argues that YouTube is not the kind of entity envisioned by Congress in enacting the DMCA.  YouTube, he claims, is more than a storage service provider; it is an entertainment destination.  Second, Viacom’s attorney claims that YouTube’s policies with regard to infringing content are selectively implemented with more proactive action given to companies in which it has a licensing agreement.  Third, the rampant unauthorized copyrighted material on YouTube demonstrates that it has the requisite knowledge of infringing activity.  He cites as further support for a finding of knowledge the fact that YouTube creates a list of “featured videos” on its home page.  Fourth, Mr. Fricklas states that YouTube receives a direct financial benefit from infringing activity.  He contends that infringing content generates popularity and more viewers which increase advertising revenue.  Fifth, he asserts that YouTube has the ability to control content.  As evidence of this fact, Mr. Fricklas states that YouTube’s managers remove pornography.  Finally, as a policy matter, he claims that requiring copyright owners to patrol the web on an ever burgeoning number of sites would be unfair.  Forcing YouTube to obey copyright laws would not stifle innovation.  Instead, Viacom’s attorney argues that protecting intellectual property spurs investment and thereby the creation of new technologies.  It is, therefore, critical that the law ensure that YouTube respect the rights of copyright owners, like Viacom.

       Mr. Fricklas’ arguments are, of course, partisan.  However, they shed light on Viacom’s perspective and the facts that it may rely upon during the lawsuit.  The article also crystallizes some of the hurdles that YouTube will have to overcome if YouTube is to receive safe harbor protection.  In reaching my conclusion as to whether YouTube should meet the DMCA’s requirements, it will be necessary to present and analyze Viacom’s arguments.  This article will be helpful in that regard.

       In this case, Costar Group Inc. v. Loopnet, Inc., Costar, the owner of numerous copyrighted photographs, sued Loopnet, an internet company that listed commercial real estate on its website which included some of CoStar’s copyrighted photographs, for direct and contributory copyright infringement.  As in the YouTube case, Loopnet sought refuge in the protection of the Digital Millennium Copyright Act (“DMCA”).  One of the critical issues for YouTube to successfully invoke the protections of the DMCA will be whether or not it receives a direct financial benefit from the infringing material on its website.  The Costar case sheds light on this element of the DMCA.  

       In the Costar case, the court ruled that Loopnet did not receive a financial benefit directly attributable to the infringing photographs.  In reaching that conclusion, the Costar court relied on the legislative history of the DMCA and related case law.  The court found significant that Loopnet did not charge a fee for posting any real estate listing, whether it was with a photograph (thus potentially infringing) or without a photograph (non-infringing).  It rejected Costar’s claim that Loopnet financially benefited by having infringing works on its website which enhanced the attractiveness of its website to potential customers.  The Costar court found that this type of financial benefit was an indirect benefit, not the type of direct benefit required by section 512(c)(1)(B) of the DMCA.  However, there is another line of cases (one of which is included in my Annotated Bibliography – Perfect 10 v. Cybernet) which concludes that there is a direct financial benefit where the infringing material acts as a draw that attracts subscribers to the website.  That line of cases could be problematic for YouTube.  In the case of YouTube, the manner in which it generates income will be critical to the application of the financial benefit test.  Specifically, YouTube’s advertising revenue will be considered in light of the Costar financial benefit analysis as well as the alternative analysis that focuses on the potential draw of the infringing material.

       Perfect 10, an adult entertainment website, sued Cybernet Ventures, an online age verification service, for infringing photographs found on its affiliated websites.  In this case, the court refused to provide Cybernet with safe harbor protection under the Digital Millennium Copyright Act (“DMCA”).   The reasoning of the court provides some insights into whether or not YouTube will be protected by the DMCA.

       In determining whether Cybernet would be afforded safe harbor protection, the court analyzed each of the DMCA’s requirements.  The court looked to the legislative history as guidance and relied upon Congress’ mandate to “take a common-sense, fact based approach not a formalistic one.”  Overshadowing much of the court’s discussion was evidence of Cybernet’s attempt to undermine the intent of the DMCA to forge a working relationship between copyright holders and service providers.  Of particular importance was the fact that Cybernet, after receiving notice from the copyright holder, failed to expeditiously remove infringing material from its system evidencing bad faith and undermining congressional intent. 

       Also significant for purposes of my paper is the Cybernet court’s analysis of the DMCA’s direct financial benefit test.  Here, the court found a direct financial benefit where Cybernet’s income was based on the number of new users to affiliated sites including infringing sites.  The court found that the quality of Perfect 10’s copyrighted images attracted new subscribers.  Thus, the infringing images acted as a draw which increased Cybernet’s revenue.  This case could be problematic for YouTube since Viacom has argued that the infringing works on YouTube’s website attracts more users which in turn drives higher advertising revenue.  Accordingly, the manner in which YouTube generates its revenue will be highly relevant to the financial benefit test.  Whether YouTube satisfies the financial benefit test will be analyzed under Cybernet’s reasoning, other court opinions, and the legislative history that interprets the direct financial benefit test.

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

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

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

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

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

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

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

 

Decherney, Peter. "From Fair Use to Exemption." Cinema Journal 46.2 (Winter 2007), forthcoming.

This article makes an interesting argument on whether exemptions from the DMCA can be made when fair use is harmed, particularly making a plea to the US Copyright Office to exempt media professors to make clips from DVDs for class use without the action (at the time of petition) considered illegal. Exemption always exists alongside fair use, and while the DMCA allows for exemptions to certain provisions, it does not exempt fair use. The DMCA’s anti-circumvention provision prohibits bypassing of the digital encrypted media, or DRM, needed to make clips from DVDs—thus, making copies is illegal even if use of the copy is considered fair use. DRM restriction interferes with scholarship and teaching, and media educators should have the right to teach university students with clips from DVDs without limiting education. The four other DMCA exemptions similarly are constructed as being a category of work limited by technology; thus, this appeal should not be any different as it is likewise a class of work defined by its interaction with an institution, a library. Naturally, the advancement of technology constantly transforms copyright policy, and the crucial step indicated is that copyright norms existing now will determine the future of fair use, and currently we are in a state of fluid academic use appealing for a culture of permission without breaking DMCA regulations. "Exemptions are not a substitute for fair use."

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

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

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

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

 

Author Fred von Lohmann discusses the role of the 'gatekepers' (such as exhibitors, insurers, distributors, and broadcasters) when filmmakers may have to clear copyright uses in their own works. While fair use is supposed to protect the transformative uses of copyrighted materials, many gatekeepers and large broadcasters and studios are failing to honor the principles of fair use. Instead, we are seeing more of what von Lohmann calls a 'clearance culture' in which full expression is stifled at the hands of media gatekeepers. The content controllers are requiring clearances for every instance of copyrighted material in films, even if it falls under fair use. This is causing many films either to be abondoned during production or distribution or for filmmakers budgets to be severely drained by obtaining clearances. In terms of relevance to my own project, the role of the gatekeepers helps to explain why the full potential of online film distribution has not yet been explored. Although this article focuses mostly on fair use and copyright clearance, when I read this article it made perfect sense why some directors (such as the more established Edward Burns or the newcomer Madonna) reject the traditional distribution system for many different reasons, and choose to distribute through online platforms such as iTunes.

The rise of internet distribution offers new outlets for filmmakers who can not afford the traditional methods of distribution. von Lohmann identifies two distribution options: video hosting sites such as YouTube or Yahoo Video that can get your film to an audience for free and immediately, as well as by purchasing bandwidth from an ISP and running your film online via a filmmakers' own server.

Internet gatekeepers such as a YouTube or an ISP are more lax than traditional ones due to the safe harbor provisions of the DMCA. In the case of online video content sites, they use a 'notice and takedown' policy to enforce copyright infringement violations. In order for a video hosting site to be free from monetary damages incurred through a copyright infringing video posted by a site user, the host must issue notice to the user that the content requires them to takedown their video, followed by a 'counternotice' option for the user's benefit in the event that a user wants to challenge the takedown. So long as the site removes the copyrighted content in a timely manner and follows this procedure, they will remain exempt from prosecution.

If a filmmaker decides to host his own video by buying a service from an ISP, a similar safe harbor under the DMCA protects the ISP's from any possibly copyright lawsuit. Under this provision, ISP's are not required to follow the 'notice and takedown, counternotice' steps as outlined above. They are viewed as only the 'pipe' in providing access, not an entity that can enforce the content present on computers owned by others and therefore out of its control. As in video content sites, ISP's do not act as middlemen in any copyright lawsuits, therefore leaving the filmmakers or other users to work out their own disputes with copyright owners directly. 

von Lohmann argues that these new distribution tools represent a new creative freedom or at least, should ensure new creative freedoms in the future. Under these new options, filmmakers' work can reach the proper audiences first - unlike in traditional media distribution in which work must pass through insurers and lawyers first.

This article is important to my research as it identifies the adverse effects the DMCA has had on technology industries, consumers, and scientific and academic research. My thesis aims to discuss how the Motion Picture Association labels piracy as the biggest threat to the motion picture industry and how that thinking can be seen as short-sighted and incorrect. Lack of innovation caused by technology protection measures under the DMCA is the biggest threat. This article really spells out what the DMCA has unintentionally done and will help me make my point in regards to illustrating how anti-piracy or anticircumvention measures are only fairly effective, and don't address the real problems that the MPA faces.

Author Timothy B. Lee opens the article with a quote from Robert Frost: "good fences make good neighbors" (2). It's pretty safe to say that fences are effective in establishing and maintaining private property rights. In this scenario, digital rights management, the technical measures placed on digital media such as CD's and DVD's, are the fences of intellectual property and copyright. DRM provides content owners a strict level of control not previously available under copyright law - control that hinders the creativity and free thinking that tech firms employ in order to revolutionize and expand their products. The article discusses how plenty of new technologies have allowed customers to purchase and view media in brand new ways, ways that the film studios don't always immediately condone. In the past, Hollywood has been very hesitant towards new technologies, from cable, to the VCR, to DVD's and now the internet.

In discussing the fight against piracy, the author identifies three significant actions that Hollywood and the recording industry take (or have taken) to deter and reduce the act: lawsuits, PR campaigns, and digital rights managment technology. These actions may keep someone who is not technologically informed from committing piracy, but for the most part these solutions have done little to help in the fight.

The DMCA's anticircumvention provisions have created many problems, including the unhealthy corporate misuse of the DMCA in trying to destroy competition.  Not only are competitive tech firms brushed aside under this act, but academic research has been stymied (again, by corporate bullies who don't want product flaws and misrepresentations to go public).  Under the DMCA, too much power is put in the wrong hands, hands that want only to protect their 'property' and possible financial revenues.

 

Fisher proposes three ways in which the recording and film industries can be reshaped, two of which involve changes to the current copyright system. Proposal number one asks that studios and recording companies stop looking at copyright as property. Fisher believes that a limiting of copyright protections would offer more selection and decrease piracy. The second idea is to treat entertainment industries as public utilities, placing a large amount of governmental control over them. Again, more selection and competitive pricing would lead to less piracy. The third proposal suggests a complete overhaul of the current copyright system - content owners will be given a unique identifier for each piece of protected material. A government agency will be set up to track each ID and see how often it is downloaded, watched, remixed, etc. A copyright tax would be implemented to pay for said agency and monies from this tax would be distributed to content owners based on a scale determined by the agency when analyzing the 'performance' of content.

The latter two of Fisher's suggestions call for heavy governmental controls over creative industries. The intersection of business and art has frequently encountered issues. This book is worth looking at for my project in that I am also proposing at least one alternative for the film industry in order to accomodate customers and at least deter piracy. Although I do not advocate Fisher's ideas of bringing the government into it, his thinking out of the box is quite innovative and interesting to think about when thinking about my own research.

How Hollywood has been trying to disrupt disruptive innovation

Decherney, Peter. "From Fair Use to Exemption." Cinema Journal 46.2 (Winter 2007), forthcoming.

This article makes an interesting argument on whether exemptions from the DMCA can be made when fair use is harmed, particularly making a plea to the US Copyright Office to exempt media professors to make clips from DVDs for class use without the action (at the time of petition) considered illegal. Exemption always exists alongside fair use, and while the DMCA allows for exemptions to certain provisions, it does not exempt fair use. The DMCA’s anti-circumvention provision prohibits bypassing of the digital encrypted media, or DRM, needed to make clips from DVDs—thus, making copies is illegal even if use of the copy is considered fair use. DRM restriction interferes with scholarship and teaching, and media educators should have the right to teach university students with clips from DVDs without limiting education. The four other DMCA exemptions similarly are constructed as being a category of work limited by technology; thus, this appeal should not be any different as it is likewise a class of work defined by its interaction with an institution, a library. Naturally, the advancement of technology constantly transforms copyright policy, and the crucial step indicated is that copyright norms existing now will determine the future of fair use, and currently we are in a state of fluid academic use appealing for a culture of permission without breaking DMCA regulations. "Exemptions are not a substitute for fair use."

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

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

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

Blizzard Entertainment sued a group of volunteer gamers who created free, noncommercial, open-source software to allow Blizzard game owners to play the games over the Internet. Claiming that the gamers reverse engineered Blizzard’s own Battle.net server software to make their own BnetD server software, Blizzard cited anti-circumvention violations of the Digital Millennium Copyright Act. Both Battle.net servers and BnetD servers were available for free online to enable online game play. However, BnetD was created as an alternative to Battle.net to fix some connection difficulties that some users encountered while using Battle.net.

Blizzard attempted to stop distribution of BnetD, alleging that the software has been used to permit play of pirated Blizzard games. However, the volunteer developers did not design BnetD for this purpose, nor were they are using BnetD for this purpose. The free software was a legitimate use and could not be bluntly labeled as a piracy device. Blizzard argued that the developers reverse engineered sections of the game, thus violating Blizzard’s End User License Agreement (EULA). The Electronic Frontier Foundation (EFF) represented the programmers and declared that BnetD was a legal free product which worked with the original product in order to benefit game owners. The court ruled in favor of Blizzard, ultimately stating that reverse engineering and emulating of Blizzard software in this case were illegal.

The consequences of the ruling were detrimental to game upgrades and user enhancements. If this decision set the precedent, user-developed programs that work with original products would be banned. Furthermore, consumer choice would be limited by the available products. Since users would only be authorized to use a certain company’s products with that same company’s accessories together, this would have a profound impact on software and game products. In a similar analogy, imagine if Brand A’s eraser had to be used in conjunction with Brand A’s pencil. What would happen if computer users were forced to run only Microsoft products with Microsoft Windows? What if gamers could only play certain games with specific designated programs and accessories? Inevitably, such precedent would drastically reduce competition in the marketplace in addition to loss of both innovation and user-generated creativity.

FBI shut down the unauthorized computer game server L2Extreme, which hosted the NCSoft MMORPG Lineage II. Owners of L2Extreme provided its 50,000 active users with service and code for the online game for a fee. NCSoft claimed millions of dollars of annual loss due to this illegal service. L2Extreme operated pirated server software copied from the NCSoft server software. Users then registered with L2Extreme to play Lineage II instead of using NCSoft’s servers.

The financial effect is of course significant, but NCSoft also had to defend its intellectual property rights. The case, at first glance, is similar to the Blizzard v. BnetD case. However, BnetD reverse engineered the Blizzard server software without direct infringement on the original software. It was a fair use copy with no copyright violation involved. Contrarily, L2Extreme simply pirated the software from NCSoft. In addition, L2Extreme was a profitable business whereas BnetD was fueled by volunteer game enthusiasts. Otherwise, the details of both cases seem very similar.

Comparing the Blizzard v. BnetD case with this event, it becomes clear that seemingly minor details are in fact the deciding factors in many copyright decisions. In one, the FBI abruptly closed down operation without proper legal decision whereas in the other, the original game company could not persuade the court of any wrongdoing on the defendant’s part. Noticeably, intellectual property laws and their applications to the game industry remains a relatively new field. Hence, it is difficult to pinpoint what is right and what is wrong. Perhaps the single greatest law which many intellectual property and gaming related cases are based on is the Digital Millennium Copyright Act. However, there are many critics of the DMCA simply because of some of the consequences of invoking the Act. It remains to be seen how long the DMCA can last before undergoing major renovations. Much of that is derived from the evolutionary nature of gaming, where much change can occur in just a few years. Laws that are applicable in one year may become outdated the next year. This is the inevitable change of technology.

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

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

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

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

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

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

 

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

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

 

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

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

 

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

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

 

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

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

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

In Blizzard vs. BNETD, Blizzard used the DMCA to prevent open source projects from interoperating with its software. Blizzard software comes with the ability to play multiplayer games online through their Battle.net service. In order to combat piracy, Blizzard requires users of Battle.net to have valid CD keys and prevented people using the same CD Key from connecting simultaneously. A group of users enjoyed the game but disliked Battle.net due to people cheating in the games. They sought to create their own alternative, resulting in www.bnetd.org. This site gave users with Blizzard software to connect and play multiplayer games through their server. This open source project was posted on the web and other people used and modified to code for similar purposes.

In interpreting this case, the court claimed that BNETD was in violation of several provisions and was not protected by the reverse engineering for interoperability exemption. BNETD did not check to see if the user had a valid CD Key before allowing them to connect to the server. The court interpreted this as circumvention, as BNETD allowed users to experience online multiplayer games with illegal copies of Blizzard software.

This case determines that plug-ins could be held responsible for their functionality when applied to pirated software. Had the plug-in been designed to bypass CD Key checks and then connect to Battle.net, the decision would make more sense. However, BNETD wrote the program to connect to their own servers, and just didn't happen to check to for a valid software copy. Holding plug-in writers accountable for license checking is a dangerous precedent. Open source developers won't want to write a plug-in if they can be sued for the misuse of their product in combination with pirated software. The right to author extensions to software and market them has been around for years before the DMCA and now has been compromised by the misuse of its provisions.

Brad Templeton summarizes the impacts of the DMCA focusing primarily on Dmitry Skylarov's case from the point of view of an eBook publisher. Dmitry Sklyarov is a Russian graduate student who made some discoveries about inadequacies of Adobe Digital Rights Management for eBooks and published a paper on it. The paper caught the eye of two groups, one a Russian software company ElcomSoft, and the other, the DEF CON electronic security conference. ElcomSoft paid Dmitry to demonstrate these weaknesses by creating a program which ElcomSoft then marketed around the world (including the United States). DEF CON honored Dmitry's work by inviting him to speak at their conference. While he was speaking at the conference, Adobe filed a complaint with the federal government about the software ElcomSoft and politely pointed out where one of the developers might be found. Mr. Skylarov was then incarcerated for weeks, and kept in the country for months before charges were dropped. Mr. Skylarov broke no law in the country in which he wrote the software but because the company whom he sold it to engaged in potentially questionable business in the United States, he was detained. Computer scientists and researchers who do work relating to Digital Rights Management and cryptography will be less likely to come to American under fear of similar treatment and prosecution, significantly hurting the research community.

Templeton's role as an eBook publisher is important as he has experience with eBooks and is financially hurt by eBook piracy, yet he still supports an open format. He's even apart of the Electronic Frontier Foundation, which is strongly against DRM.  He discusses the failure of DRM and the benefits of open formats. Open formats are at a greater risk than closed but also see greater sales because of their increased utility. He also points out that as long as the DMCA prevents people from cracking poorly designed locks, there is less of an incentive to design better, more secure locks, stifling developments in security research. Templeton concludes that scapegoating weak DRM on a foreign visiting scholar only hurts the interests of the consumer, the research community, and the copyright holders whom the lock is designed to protect.

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

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

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

The Wireless Alliance and Robert Pinkerton request a DMCA exemption for modifying mobile phone firmware. Their case specifically pertains to counteract the practice of cell phone locking. It is often that the only way to get a phone service carrier by purchasing a bundle with a special phone that is tied to that particular service. When switching to a new service, consumers forced into buying new (often unnecessary phones). The Wireless Alliance and Mr. Pinkerton argue that modifying cell phone software does not create unauthorized copies of the original work. It is possible that in the eyes of the law, the modified firmware might be viewed as a derivative work. However, copyright law permits users to modify purchased software (a category under which firmware falls). The Copyright office recently granted the Wireless Alliance and Robert Pinkerton the exemption.

The exemption for modifying firmware to legally join cell phone networks and carry out legal activity is one of the few cases where the decision was not in favor of the large business. One of Mr. Pinkerton's main complaints was that as he traveled often internationally due to business, it was difficult for him to find a carrier that met all his needs. He found a carrier he liked internationally and a carrier he liked locally, and wanted to modify his phone so he could connect to a different carrier while in a foreign country. The obvious extension is that DVDs with region codes would prevent someone traveling from playing a DVD in a foreign country's regioned player, and an exemption should be provided for DVDs legally purchased in a foreign country. However, the real heart of the case is not Mr. Pinkerton's travel, but needing two different services depending on the context of his work. Licensed applications for Windows and Mac OSX are common and are often embedded into the operating system directly. However, the Open Source nature of Linux distributions makes players for DRM protected media scarce and built-in functionality often impossible. If someone's business practices makes Linux a necessity, they should be permitted to modify their operating system to properly play protected media. The courts and the copyright office previously found that not being able to play content is a mere inconvenience to a consumer. This case demonstrates that the government has more sympathy for business practices hindered by the DMCA. Approaching future exemptions and cases from this angle might be the best way to counter the DMCA.

DVD-CCA vs. Bunner brings up the issue of posting DeCSS several years after its original posting. The DVD-CCA at the time of the original ruling in 1999 sent out cease and decist letters forcing web sites to remove any mention or discussion of the algorithm and codes from their web sites. The courts granted injunctions against any sites that posted the algorithm as they were revealing the DVD-CCA's trade secret as well as violating the trafficking provision of the DMCA. However, the court determined that even before the original injunction, the majority of the people who wanted to obtain access to the code got it. So many have access to the code that the court brings into question the protected status of the DeCSS algorithm, and the court determined that the DVD-CCA did not make a strong case to warrant an injunction against Bunner's web site.

The most important result of this case is that the DVD-CCA was unable to demonstrate any harm caused or potentially caused by DeCSS being posted by Bunner. The movie industry still profits massively from DVD sales in spite of the algorithm's release. If the courts determined that it being released out into the open will have little impact on the businesses protected by DeCSS, the original publishing was not as damaging as the DVD-CCA and the industry originally claimed.

Also, at this point any protection granted by using the DMCA to enforce trafficking restrictions on the encryption algorithm has been lost. Open source encryption algorithms have the benefit of being examined by experts to make them the most effective. All the DVD-CCA accomplishes by continuing to close the algorithm off to the community is losing the benefits of the scrutiny that open techniques get. This case is a strong example of what papers such as “DMCA Against the Darknet” propose: that DMCA is not an effective tool for countering piracy and that anti-piracy methods that depend solely on DRM are bound to fail.

Alan Cox states in the Felten case many of the speculated impacts of the DMCA and its enforcement. Cox is a Red Hat Linux (an open source operating system) developer residing in the United Kingdom. His statement includes a resignation letter to Usenix (a group that encourages foreign researchers to speak in the United States). In this letter, he tells all foreign software developers to avoid visiting and speaking at the United States until the “DMCA mess is resolved.”

This comes as a direct result of the Dmitry Sklyarov case. He fears that foreign researchers can be jailed for research in security and cryptology they performed in their own countries if it is viewed to be a DMCA violation in the United States. The DMCA prevents security experts from pointing out bad protection algorithms and only increases the profitability of the “businesses of the incompetent.” Without the ability of experts to point out and discuss bad algorithms, copyrighted material protected by these algorithms are exposed to hacking.

He further notes that the DMCA will not prevent people from discussing ways to break algorithms for illegal uses. His experience is that the “bad guys share their knowledge and act without regards to laws.” It's only the people aiming to increase the strength of computer security that will be silenced. The DMCA only helps pirates win in the end. Cox also claims that what the DMCA would prevent him from saying regarding inspecting computer security systems in the United States would be considered negligent in the United Kingdom.

From Cox's statement, the DMCA hurts the United States software development community in two main ways. It prevents international researchers from speaking, for fear of prosecution of their research or activities in other countries. It also means that the block of the DMCA will hinder US researchers from discussing decryption methods and our own security will be weakened when compared to the advances made by other countries who are able to have these discussions.

Edward Felten, head of the ACM's special interest group on DRM, petitioned the Library of Congress for an exemption in order to circumvent access control mechanisms for research purposes. Felten discusses how the evolution of technology is dependent on past improvements. By restricting researchers from experimenting with copy protection methods, improvement to techniques will be hindered. He demonstrates the negative impact by discussing the paper he wrote comparing different methods of breaking protection and what information is required to crack the protection, something the record companies tried to prevent from being released with the DMCA. Felton also claims that in the field, it is unclear in the early stages of research whether a possible DMCA violation will be incurred or not. Academics are unlikely to engage in research that could potentially lead to violations, hindering not only research directly related to DRM, but tangential applications as well.

The most important thing to come out of the exemption request is the context in which research is given. In describing the valuable research he participated it in before the DMCA was enacted, Felten notes that the SDMI sponsored his acclaimed research paper on breaking access control methods. The SDMI is a group of music distributors, and had something to gain from their studies, and now sought to prevent others from sharing in this knowledge. Clearly, by inhibiting research into access control, the technology of copyright protection and the lessons learned from the research falls solely in the hands of the gatekeepers, the record companies. Without the added input of the academic community, research in the field has been hindered and copyright holders have not been provided the best digital protection methods.

The best example of his hindered research is the Sony Rootkit debacle. He and an associate discovered the vulnerability but had to delay publication and hire a lawyer to make sure that they weren't exposing themselves to DMCA violation. Threats of DMCA violations prevent important studies and important information from reaching the consumer.

The courts' decision in “MPAA vs. 2600” prevented journals from writing articles about Digital Right Management that divulge methodology. After “DVD Jon's” deCSS program (which breaks the encryption on DVDs) began circulation, 2600 had an article in print and online which detailed the algorithm and decryption codes used in breaking the CSS encryption. The MPAA filed suit under the trafficking provision of the DMCA, claiming that 2600 was distributing a program which would contribute to breaking DVD encryption. 2600 claimed that this inhibits free speech. As a technical journal which specializes in computer encryption and decryption algorithms , it needed to be able to provide the details to its readers. The magazine complied with the injunction to remove the algorithm from their site but began to participate in what they referred to as “electronic civil disobedience” by encouraging others to post the algorithm and then provided links to these sites.

The court determined that both posting and linking were not protected by the first amendment. They determined that while there is a part of code which is speech, there is also a non-speech component which can be banned under the anti-circumvention clause. Exemptions are provided for reverse engineering and cryptography. However, these exemptions only extend to the cryptographers and the reverse engineers directly. Publishing their results is not considered an exemption. The consequence of this decision is that to prevent lawsuits, technical journals will likely avoid discussion of Digital Rights Management. For example, discovery of important security flaws would not be published because it might hint as to how to break the encryption. Understanding the flaws of the current generation however is essential to enhancing security for in the future. Development of future security methods have continued to be crippled by the DMCA, due to the limited scope of the exemptions.

This is suit that Lexmark International, Inc filed against Static Control Components (SCC), Inc. It is the appeal case, where the court overturns the findings against SCC. Lexmark claims that SCC violates the DMCA by selling printer toner cartridges that work with Lexmark’s printer engine program. Lexmark claims that SCC’s chip violates the DMCA and federal copyright law. Part I A of the case provides a description of the companies and the computer programs and how they work. It also explains Lexmark’s toner cartridges and the chips manufactured by SCC. Part I B is a summary of the proceedings and findings of the district court. Section II says that the district court abused its power and outlines four criteria that have to be fulfilled in order to uphold the preliminary injunction. Part III is the beginning of the decision. The first part of the decision outlines the laws that relevant to the case and what each side has to prove in order to win. The court uses the idea-expression dichotomy and other copyright principles to find that one part of the software, the Toner Loading Program, is not copyrightable. The court also states three errors that the district court made in its ruling on the issue of copyright infringement by SCC. The district court was mistaken about what is protectable and what is not when it comes software copyright. Part C of the decision assesses Lexmark’s counter arguments that support the ruling of the district court. Part D comments on the district court’s response to SCC’s fair use arguments, even thought they were irrelevant because the Toner Loading Program is not copyrightable. The court says the district court was right in the four factors SCC had to have for a successful argument and comments on these. Section IV of the decision looks at the DMCA element of the case. Part IV A looks at the laws and what claims the parties make under these laws. Part B says that reading the printer’s memory, not only by the code, can access the Printer Engine Program because it is not encrypted. Since no security device has to be circumvented to get to the code, SCC is not in violation of the DMCA. The rest of this section looks at Lexmark’s case and responds to it. Part C states that the SCC chip does not provide access to the Printer Engine Program, it instead replaces it. Part D addresses the district court’s assessment of SCC’s case because it could become relevant. The court vacates the preliminary injunction and orders further proceedings.
This case is relevant to my paper because it shows how companies attempt to use the DMCA to prevent aftermarket competition. Even though Lexmark fails, the courts ruling has nothing to do with the DMCA and its wording, rather it is about technicalities in a sense. Lexmark lost its case because one of its programs cannot be copyrighted and the other was not encrypted, not because of interpretation of the DMCA. Even though there are court cases regarding the law and its uses, they are not effective in setting precedents or helping with DMCA interpretation.

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

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

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

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

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

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

John Gilmore looks at the effect the lack of open standards has hurt the digital author not associated with major studios. He discusses several examples, such as Apple's iDVD and Sony's MiniDisc format. He is legally unable to copy his brother's wedding using the MiniDisc format, even though he holds the copyright because it assumes that he's trying to pirate content. With iDVD, he comments on Apple's marketing, which states that “the major consumer applications for recordable DVD will be home movie editing and storage and digital photo storage” and not potential fair-uses like time-shifting digital content. He further points out Apple is not offering authors the ability to encrypt their own copyrighted films and materials. If copy protection is so essential to protecting the copyright holders intellectual property, why isn't readily available to all copyright holders?

Where copy protection goes wrong is that it takes away rights from the new digital author and monopolizes the protections of them for only a select few. Competing open DRM formats have begun to emerge to fill this gap. However, a young filmmaker needs to ensure that his video is as compatible as possible. He now has the choice between protecting his work but preventing it from being played on DVD players that don't support the new open formats (most of them), or exposing his work to piracy.

Gilmore's arguments shows a strong legitimate need for an open source developers to develop applications that might be in violation of the DMCA. An open source application might expose certain algorithms and codes, and even development of a closed source application would likely require breaking encryption at some point in the product's development.  The courts and the copyright office generally use the phrase “mere inconvenience” and wave their hands at demonstrated harm to consumers not being able to access their digital content.  However, requiring young authors to get picked up by a major licensed company in order to receive protection can hardly be so easily ignored.  The best solution to lowering the barrier of entry for copyright protection is through an open source DRM standard that either is adopted by major players or at least cocurrently supported with their proprietary technologies.

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

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

 

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

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

Sun's DreaM White Paper outlines the current flaws with current DRM standards and their proposed solution, a marriage of the open source philosophy and Digital Rights Management.  They also outline the potential for the future of DRM outside of media content protection.  Sun's paper explains the flaws of the proprietary based systems currently in place.  By tying up content with proprietary DRM protection, the same content must be purchased whenever a different device is chosen.  A standardized format would ensure cross-platform capability, much in the same way that the CSS allows for flexibility across different licensed DVD players.

Current proprietary systems attempt “security through obscurity.”  The algorithms are often weak and prone to cracking, and simply hopes that no one will figure out the keys.  Opening the format has the benefits of criticism.  Everyone will be allowed to debate the merits and the strengths of the systems, as well as offer suggested improvements, ensuring that the open DRM will be the strongest.

It also suggests that an open standard can expand the market for DRM.  While the market was generated by media content providers, Sun envisions that the needs of businesses and health care will far outweigh the media companies.  Securely protecting business documents and health records is a need that DRM will logically be extended too.

The modularity of the architecture allows for adaptability with future technologies and compatability across multiple formats.  While this system has its skeptics in groups like the Electronic Frontier Foundation, it has received some backhanded complements from scholars like Lawrence Lessig, stating that if you have to DRM, you want Sun's version.

Sun's DReaM architecture is a strong example of how opinion source development can be used to help copyright holders and consumers by encouraging technological development.

This article looks at how the DMCA provides a super-monopoly that is a viable method of doing business and bypasses the inconveniences of copyright and patents by protecting things that were once allowed. The article analyzes current court cases and shows how they have yet to rule out the so-called super-monopoly that the DMCA allows. The first section of the article explains the DMCA and what it does. It also explains how companies use the first part of section 1201 (1201 (a)) as a means of monopolizing their market. The first case that the paper examines is Lexmark v. Static Control. Lexmark makes their money through the after market sales of their toner cartridges and replacement parts. However, there are many companies that sell toner cartridges that are Lexmark compatible. Lexmark created a Printer Engine Program to combat this and make their cartridges the only ones that work with their printers. This copyrighted software works with a chip in the toner cartridge and prevents the printer from working with any other cartridge or with an empty cartridge. Static Control is a company that sold chips to companies that refurbished Lexmark Cartridges. These chips allowed the cartridges to be accepted by Lexmark’s software control program. The courts first ruled that Static Control violated the DMCA. The appeal overturned this decision because of failures with Lexmark’s software and the fact that they were not encrypted or necessarily copyrightable. The programs that Lexmark used only protected one type of access, and left other methods open. The second legal example is The Chamberlain Group vs. Skylink. Chamberlain wanted to control the garage door remote control market and sued Skylink over a remote control that opened doors with a digital security feature. The court ruled in favor of Skylink because the unauthorized copying that Chamberlain sued under did not involve copyright infringement, so it was not covered by the DMCA. The next section of the paper outlines how you can effectively create a super-monopoly. The first strategy is to copyright the software for the product and its replacement pieces. A part of this software has to contain a secret code that unlocks the main software. The second tip is to write long and inefficient programs. These programs are more likely to be copyrightable because they have original expression. They are also harder to reverse engineer and cannot be used because they are the most efficient. The third suggestion is to include non-functional code in the program so there is evidence if another company directly copies your program. The fourth way is to encrypt copyright programs. This prevents people from accessing the program itself. Fifth is not making the “key” dependent on the entire program in the parts. Code inputs should be stored elsewhere on the chip. The sixth and seventh methods are avoid licensing that allows continued use of copyright programs and sell the main unit and main program separately. The article concludes that the DMCA allows companies to monopolize their aftermarket.
This article is a good example of how the DMCA can be manipulated in a very effective manner. The DMCA is a tool that creates a new business model of monopolization, and this article is evidence of that. The court cases show how the courts have not ruled on the DMCA itself, they have only applied it to situations. The paper outlines how to avoid loopholes and make your business plan sound under the DMCA in order to create a monopoly. The DMCA has clearly created a new way of doing and controlling business that is contrary to the original intentions of copyright law.

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

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

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

This is Title 17. Copyrights, Chapter 12. Copyright Protection and Management systems. Section 1201 outlines the circumvention of copyright protection systems. It focuses on what violates the circumvention part of the act. This part of the DMCA states that you cannot circumvent a technological measure that exists to control access to copyrighted work that is protected by the DMCA. This part of the DMCA also makes products that circumvent copyright protection illegal. It states that you cannot make, trade or sell programs that are primarily designed to circumvent copyright protection, such as programs that break encoding and that do not have any commercially significant use outside of circumventing copyright protection technology. The section then goes on to define what the word circumvention means in this context. One cannot create something that disarms any protection on the copyrighted work without permission of the authors. Examples such as decrypting and descrambling are given. The section also states that this does not violate and rights that come with copyright including fair use and free speech. The chapter also provides exemptions for nonprofit libraries, archives and educational institutions to the first provision of the chapter with limitations. The chapter then goes on to look at reverse engineering and encryption research. These articles outline the legalities of circumventing copyright protection to analyze its flaws among other things. There are allowances for good faith testing and research in some areas, although they are limited. The end of the document gives a history, notes and definitions of subjects that are part of the act. It also cites relevant cases that have challenged the DMCA, its stipulations and its legalities.
This is the section of the DMCA that many hardware manufacturers are using to create software that is copyright protected and is the only software that the hardware can be used with. This is the law that allows small monopolies on the market to exist until something new is invented or the monopoly is challenged by law. This section of the DMCA allows for copyright protected material to be impermeable to circumvention. This is an important part of the DMCA and is one that draws a lot of attention both in and out of the legal system. It has, in some ways, created a new business model and a new way for companies to enter another market by exploiting the copyright protection and anti-circumvention clauses. It allows companies like The Chamberlain Group to try and block the market and control it by claiming copyright infringement. It also allows hardware companies to enter the software market because they create hardware that can only be used on their copyright protected software platforms. Although a lot of this has not held up in court, when challenged, it has become a popular way of doing business and entering into a new market. This part of the DMCA is the backbone of my paper. I will analyze its words to show how it allows for companies to attempt to monopolize markets and control aftermarkets. I will also suggess that it needs to be ammended because although the courts have limited the attempts of some companies to control their market and aftermarkets, the DMCA is still open to exploitation because the court rulings do not create any legal precedents that go against the DMCA itself.

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

This article explains the DMCA as well as looks at current challenges to the act as well as relevant court cases. The first section of the article outlines the history of the DMCA and how it came to be. The DMCA added six new sections and two chapters to the 1976 Copyright Act. The anti-circumvention clauses prevent people from copying copyright protected works and from trading methods to circumvent copyright protection. These provisions are more for the content industries than the ISPs. This first section prohibits breaking any kind of encryption or copy-protection the second and third sections prohibit the trafficking of any methods or devices that break or circumvent copy-protection that controls access or targets use of the copyrighted material. The article then goes on to talk about the developments of the anti-circumvention laws. The author states that courts have not gone beyond protecting the content industry’s products beyond their original scope. This prevents durable goods markets from monopolizing their industry. The author gives example of the Lexmark v. Static Control Components (SCC) case. This is a case where Lexmark tried to prevent the sale of third party refurbished toner cartridges that could be used with Lexmark printers. The chips that SCC developed allow the third party cartridges to interact with Lexmark’s copyrighted software. The court ruled against Lexmark and established important DMCA liability precedents. The copyrighted work must first of all qualify as protectable and there has to be a security device that protects copying without permission. The author then moves to the constitutionality of the DMCA, again citing relevant court cases that have challenged the act. The third part of the article then addresses the safe harbor portions of the DMCA, which were put in place for the ISPs. This section begins with a background and description of the safe harbor provisions. The next section of the article provides information about notice requirements and provides court examples. The Hendrickson v. Amazon.com case is used to show the responsibilities of each side in using the safe harbor rules and infringement notices. The next section looks at threshold eligibility and again uses a court case to help define this part of the DMCA. The last two sections of the article look at how safe harbor is not the only refuge that ISPs have when it comes to copyright infringement as well as cease-and-desist letters and how they work with ISPs and the DMCA.
This article is important in defining the anti-circumvention and safe harbor parts of the DMCA. It helps provide an understanding to laws that are very complicated in their wording. It also shows legal challenges to the DMCA. The Lexmark case is an example of a hardware company using software to try and monopolize its segment of the industry. Lexmark would profit greatly if its cartridges were the only ones that could be used with its printers. The court, however, stopped Lexmark by ruling that its program was not covered under the DMCA because it left other avenues to accessing its software open. A company tried to use the DMCA as a way to profit in an aftermarket, using copyright law to profit rather than the reasons the law was created, and was stopped by the courts.  I will use this article not only as background information for my paper as well as an example of how the courts have to regulate companies so they do not exploit the DMCA and copyright in order to monopolize a market.

This article argues that the DMCA instead of serving public interest and content holders. The author claims the DMCA exploits consumers and their legal purchases and he offers alternatives to the act. The author questions if the DMCA will really help create a “global digital on-line marketplace for copyrighted works” or if it just a slow response by Congress to the digital age. He also asks if the new marketplace will be beneficial to the consumer or to the companies who try to take advantage of the DMCA. The author looks at archival use and the first sale doctrines. He argues that the DMCA renders these provisions of the Copyright Act of 1976 moot. One cannot make archival copies of a DVD because to break the encryption violates the DMCA. The second part of the paper analyzes the 2001 report done by the Copyright Office on the DMCA. Most people interviewed for the report found that the DMCA limits the concept of the first sale doctrine that has been a part of copyright since 1909. The problems come with encryption and the regional coding of DVDs. The argument is that the DVD encryption that will only allow DVDs to play on licensed players limits the first sale doctrine and was a reason that people would not buy DVDs. This is thus, a way in which consumers are exploited and forced to buy licensed DVD players. The author argues that the commercial rights are restricted not by market forces that are natural, rather by the manufacturers. The report issued by the Copyright Office calls the arguments against the DMCA “without merit.” The DMCA disallows any secondary markets. The paper then turns to archival copying and critiques how the DMCA prevents this legal right under federal law. The next section of the article is case studies that further examine the claims the author makes against the DMCA. The first one is about the first sale doctrine. The example is when Linux users cracked the CSS encoding on DVDs so they could play on a Linux platform, which was followed by a lawsuit led by Universal. This case set the precedent that non-infringing uses for breaking encryption was not a defense against the DMCA. The next case is about video game archiving. Here, one example is given of a suit where the copier for archival purposes lost and one where archiving won. The difference was the proof of other non-infringing commercial uses of the copying mechanism. The third example is another court case that violated the DMCA in creating a technology to circumvent copy protection. The third example in this section deals with criminal charges for breaking encoding on an Internet book. The last case study deals with taping TV shows. This section questions the future of TV with the possibility of copy-protecting HDTV broadcasts. These examples show that copyright is no longer for the good of the people, and rather helps create monopolies under the DMCA. The article also claims that the case studies show the fallacies in the Copyright Office’s report and that things like the first sale doctrine and archival copying are in jeopardy because of the DMCA. The last section of the paper proposes the author’s possible alternatives to the act.
This article demonstrates how the DMCA creates a new business model through copyright. Copyright does not function as it once did; rather, the new provisions of the DMCA make copyright law an avenue to monopoly. This article proves that the nature of copyright has changed and the things that are no longer allowed under the DMCA give a virtual monopoly to the content owners and manufacturers. This is the beginning of companies turning to copyright to corner or break into a new market.  I will use this paper as evidence for how the nature of copyright has changed and it is being used as a means to monopolize a market rather for the good of the people, as it was intended. 

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