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.

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 reading provides an excellent introductory comparison of copyright in the United States versus other countries.  It explains how copyright here is based on economic concerns, while copyright in other countries, such as in Europe, have a natural-rights conception, which takes into account moral rights of the author.  This essay compares a state statute, the California Art Preservation Act (CAPA) to VARA. It is useful to compare a state law to a federal law, because often times the question of which is right, if they are conflicting, arises.  In this case, the federal law can trump the state law if it says so explicitly or by enacting a contradictory piece of legislation.  It is important to note the fact that while the artist is living, CAPA is not likely to be applicable because VARA is a federal law and takes precedence, but when the artist dies and is therefore no longer protected by VARA, the artist is protected by CAPA.   The issue is brought up that in trial, expert testimony is necessary to determine whether the work of art is of recognizable stature.  The issue of mural conservation is raised, because conservation often requires practices that if not done carefully and correctly, can ruin or damage artwork. 
This article is an important implication of the extension of VARA to protect specific works under specific circumstances (murals during conservation projects).  Garfinkle provides recommendations to mural artists so they can avoid having to worry about their rights under VARA or CAPA.  She also provides recommendations to property owners, so they can protect themselves from lawsuits.  Because some states provided protection for moral rights before VARA was created, comparing VARA and CAPA is useful because there could have been some parts of VARA that came from state laws.  By understanding state laws we can see other ways that moral rights are incorporated into United States law, because copyright law in the US was only concerned with the economic rights of the authors or artists until VARA, so this is a new addition; therefore, background information and relevant laws are useful.

Included in the Visual Artists Rights Act is a directive stating that studies must be conducted by Congress to assess the impact of the waiver clause of the act.  This reading is from the United States Copyright Office and it is a summary of the VARA and its significance.  It also assesses its impact on copyright in the United States.  The studies assess whether the state statutes and regulations of moral rights really should be applied where they are designated.  The moral rights in other countries are touched upon, so as to compare to the United States law.  Since the Berne Convention, other nations have become more concerned with preserving the relationship of the author with his or her work.  Interestingly, in the United States, although moral rights were not a part of the federal copyright law prior to the VARA, some states (through various court cases) have enacted moral rights laws.  Such cases as Carter v. Helmsley-Spear, Inc are described to show how moral rights have been incorporated since VARA.  The US Copyright Office also issued a survey that was disseminated to art related organizations. The purpose was to figure out what they knew about VARA, whether artists had been asked to waive their rights, and it sought to determine the impact of VARA, directly from the source.  

This examination by the US Copyright Office is fairly extensive, and provides evidence to show that including moral rights into federal law in the United States is faced with doubts.  This reading shows that after laws are passed they do not just become part of the legislative circulation and then forgotten, but that they are consequently studied and questioned.  This shows the progressive nature of the legislation process.  Specifically with regards to VARA, the fact that required studies were part of the act shows that doubts were in place before its passage.  Including moral rights of any kind in United States Copyright Law was not done before this act was passed, so no one knew how this would turn out.  Because VARA is also a new type of legislation, the fact that this article highlights that many who could be protected by VARA do not know about it, shows that more information needs to be disseminated to the public regarding new legislation.

This article examines the Visual Artists Rights Act as applied to digital graphic art.  It first defines moral rights as “the rights of the artist to create a work, to display the work to the public in whatever form the artist chooses, to withhold the creation from the public, and to demand respect for the artist’s personality as the creator of her works.”  The article then further breaks this summary down into categories.  An interesting distinction made is the fact that copyright extends beyond the life of the author (oftentimes) but moral rights do not.  This article provides a basic summary and background of VARA, and lists various specifications for what defines a work that would be protected.  VARA was introduced into the United States Copyright Law following the Berne Convention’s moral rights code; however, unlike the European version, it only covers visual artists.  Based on what the act uses to define painting and drawing, it is arguable that digital works should be protected.  Interestingly, the article states that Congress designed VARA so that it would “evolve with the artistic community” and under VARA, digital art is considered visual art.  The article then illuminates what is within VARA’s scope of protection, and discusses the two integrity rights and three attribution rights.  It also highlights the importance placed on the honor and reputation of the artist.  How VARA relates to state legislation is discussed, and the fact that state laws do not always cover moral rights, but they do highlight certain topics like trademarks, that could be associated with an artist’s moral rights.  Further recommendations are made as to how attorneys should represent their clients who are trying to claim protection under VARA, and whether that is feasible under the guidelines listed.

This article is an example of what is continuously discusssed regarding new technology constantly changing the world of copyright.  It is important to note how with the changing times, laws are now a little more broad in their reach, so as to seem more progressive.  The discussion of representing clients who feel their rights have been violated and are claiming protection under VARA is crucial to understanding how the act is carried out in reality.  The fact that understanding why the work was created and the medium that was used, among other factors, are important to note to understand the scope of VARA.

This is the text for the Visual Artists Rights Act of 1990.  The first section defines a work of visual art as "a painting, drawing, print, or sculpture" or "a still photographic image produced for exhibition purposes only" The work has to have no more than 200 copies, and each has to be signed and consecutively numbered by the author.  This act protects the works of authors in the visual artistic field, and allows the authors to take credit for their work, and also to remove their name from any altered version of that work. The author can also prevent intentional changes of their work, especially if it would hurt the author's reputation.  This also enumerates certain exceptions and also the duration of the rights, which is the life of the author.  The act also has a transfer and waiver section that lists that rights cannot be transferred, but the author can waive them.  In addition, if the work is part of the structure of a building or something of the sort, then the owner of the building needs to get permission from the author in order to remove his or her work.  However, if the moving of the work will not ruin or destroy it at all, then it is permitted. 
This act is the basis for subsequent cases and claims of copyright for visual works.  The Visual Artists Rights Act of 1990 (VARA) adds more specifics to the United States Copyright Act of 1976.  The extension to include visual artists works is an example of how changing times need new legislation.  Under the original act, visual works are somewhat protected, but VARA gives more rights to the authors.  Under VARA, the author can still control what is done with and to his or her work, even if he or she is not the owner of the physical piece.  This is a major step forward in the United States copyright realm, because this is the first time that moral rights are given to authors; although, in Europe author’s already had moral rights.

Zakolski LA. Exclusive Rights in Copyrighted Works; Exploitation of Artistic and Literary Property A. Exclusive Rights 2. Visual Arts. American Jurisprudence 2, September, 2008.

This is a treatise from the Westlaw database, and is specifically from AMJUR.  Just like most of the other readings, it first outlines the Visual Artists' Rights Act. Interestingly, it states that the rights under VARA only apply to the creator or owner of the work, regardless of if that author is the copyright owner.  The main body of this piece of research summarizes court cases having to do with VARA.  In such cases as, Pollara v. Seymour, 150 F. Supp. 2d 393 (N.D. N.Y. 2001), a precedent was set that just because the work was not actually up for exhibition, does not mean it does not get protection under VARA.  Citing Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003), it was determined that when a banner is hand painted but used for a political message, and specifically when paid for by the organization that the message is for, then it is not protected under VARA.  In another noteworthy case that is mentioned, Martin v. City of Indianapolis, a ruling was made regarding “recognized stature.”  This stated that although the city claimed that it did not know the work was of prominence or supported by VARA, the fact that there were newspaper and magazine articles about the work prove that the city had access to the information; therefore the city could not claim ignorance. 
This research examines the scope and implication of VARA, and exemplifies how VARA was put into use.  By compiling summaries of major court cases, the treatise allows quick access to decisions regarding VARA; thus prompting further research and exploration about the topics discussed.  These cases highlight how works are not protected if they are considered “work for hire” and that if sufficient information is available to the public about the significance of a work, someone cannot damage or destroy it and then claim lack of knowledge.  It is necessary to research these cases further to analyze their significance entirely, but having a quick summary is useful to get the main points and facts that resulted from the decisions.

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

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

This article highlights some of the ambiguities of VARA, such as leaving subjective and objective interpretations of harm open for debate.  Because of the broad nature of the act, court cases such as Carter v. Helmsley-Spear, Inc, have expansive room for interpretation.  The objective approach was taken in the case of Carter v. Helmsley-Spear, Inc.  There have been subjective interpretations, like in Pavia v. 1120 Avenue of the Americas Associates.  It is evident through legislation that Congress intended for VARA to have a narrow application, and to be used as a small step towards including moral rights in United States copyright law.  Substantial modification of a visual work is compared to the concept of substantial similarity in traditional United States copyright law, which facilitates the objective approach to interpretation of VARA.  The article also describes how if the modification to the work is considered insignificant (i.e. lighting a painting from below as opposed to above) then the artist cannot claim infringement of VARA.  By comparing significant vs. insignificant modification juxtaposed against qualitative vs. quantitative modification, the scope of and debates regarding VARA are brought to the forefront.  An interesting point is that when judging art, some argue that the judges do not have adequate training to deem modification as infringement. 
This article is important to decipher the meaning of modification of a piece of artwork.  The debate over how the act should be and is implemented highlights the ambiguities of VARA.  Because VARA is the first time moral rights are worked into United States law, its scope is narrow so it can be a test to see how the expansion of protection beyond economic rights fairs.  It is clear that debate exists, because of the possibility of subjective vs. objective interpretation; although Hawkins believes objective interpretation is much preferred.  Once again, court cases are examined to show the way the act has been applied and interpreted; therefore, Congress can gauge whether federal copyright law in general should be expanded to include moral rights, as it does in other countries.

Berlowe et al begins by enumerating the five rights granted under moral rights, and differentiates those protections from those of Copyright Law, which has an economic basis in the United States.  Compared to the Berne Convention, VARA is “analogous to Article 6(b),” but its scope is significantly narrower.  By examining the language of VARA, the definition of a painting and a drawing are vague enough that protection could be extended to include some computer drawings.  Both sides of the issue of whether digital art should be protected by VARA are argued.  Some say that digital art is just mathematical, while others say that with the way technology is moving, digital art is just another new medium that artists are utilizing.  The scope of VARA is also described, and then applied to digital art.  In addition, Berlowe et al illuminates that because digital works are not protected under federal law, state laws can provide moral rights to digital graphic artists without preemption by VARA.  Berlowe et al also states that artists should be advised on the other ways they can protect their works, which could include trademarks, licensing agreements, etc. 
    This article is important to argue the progressive intentions of Congress when creating VARA.  Technology is always changing and it is clear that it is necessary to create laws that have room for technological advancements.  With added works and ways of creating them, it is necessary to pass legislation with room for advancement.  The fact that Berlowe et al explains the importance of “the environment in which the artist works, the medium of the work, the artist’s reputation, and the stature of his or her work” shows the complicated factors that go into determining protection of works.  By comparing VARA to state laws, such as those in Florida, it is clear that there is tension between federal and state protection and jurisdiction.  States have provided moral rights protection long before United States federal law ever did, so there is inherent conflict between the two.

Lexis Nexis Article

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

BYLINE: Natali Del Conte Natali_DelConte@ziffdavis.com

SECTION: NEWS AND ANALYSIS

LENGTH: 856 words

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

Copyright Notice that Youtube posts for its Users.

Thesis: The Copyright Royalty Board's decision to increase royalty fees for online music streaming is unfair and will lead to popular internet radio stations, such as Pandora, to go out of business. Paper proposal: I would like to research and write a paper on Pandora in the context of online music streaming. The paper would focus more on the Pandora case, but I would also discuss the copyright issues concerning internet radio stations. My research would include Pandora's background, its terms of use, and its method of dealing with copyright concerns. I would also research the Copyright Royalty Board and other internet radio stations. This research would allow me to analyze and argue that increasing internet radio fees are putting internet radio companies, such as Pandora, in risk of going out of business. The goal of my paper would be to discuss the fairness of the royalty fees for internet radio stations and use Pandora as the main example and focus of this argument.

annotation

my thesis, argument, etc.

argument of the book

analysis

Eldred v. Ashcroft oral arguments.