Category: MGM v. Grokster
June 11th, 2009
Napster and the "The more things change" rule
Drew Wilson at Zero Paid points out that Napster celebrates its 10th birthday this month. The Globe and Mail takes a deeper look in its Download Decade series. In the last decade, iTunes, Amazon, and various subscription music services have demonstrated there’s a vast audience more than willing to pay for entertainment downloads given the right mix of value and convenience, though pricing and freedom from DRM remain sticking points. At the same time, lawsuits against individual alleged file sharers march forward, and the entertainment industry has not relented in its pursuit of what it perceives as Napster’s successors (e.g., Pirate Bay, Real DVD). Which prompts me to wonder: in the ten years since Napster sent the entertainment industry its wake-up call, has anything fundamentally changed?
[Update:] Or as Bob Lefsetz puts it: “So I just don’t understand this ten year period. What did the rights holders prove?”
Loading ...March 31st, 2008
Sparks fly over copyright at Tech Policy Summit
The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.
I. Copyright Policy
The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:
Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.
Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.
Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:
Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.
Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:
In Hollywood, it’s not just about the money. It’s about all the money.
Von Lohmann concurred:
Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.
He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.
At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »
February 18th, 2008
Lawrence Lessig, congresscritter nominee
TWiL regular John Palfrey announced a great idea last week while we were recording the forthcoming episode: a Facebook group drafting Professor Lessig for a recently vacated Congressional seat. Says John, "It’s high time we had our first true Free Culture candidate for public office." The Facebook group is about to hit 2,000 members, and there’s an official Web site as well (get your badges here). Seems appropriate in an election season so unusually filled with promise for needed change.
For his part, Professor Lessig isn’t ruling anything out, telling Ars Technica, "At this point, I’m not really able to say anything. I’ve been kind of stunned by the push of many, and am away with my family this weekend to think things through." More from Ars Technica, TechCrunch, and Slashdot.
[Update, 2/20/08 6:51 a.m.] TWiL #12 went up yesterday.
[Update, 2/20/08 6:55 a.m.] Via Jonathan Zittrain, a new site from Professor Lessig, lessig08.org: "I have decided I want to give as much energy as I can to the Change Congress movement. I will decide in the next week or so whether it makes sense to advance that movement by running for Congress."
October 15th, 2007
Want to know what over 7,500 ZDNet readers think about copying digital media?
Then get on over to Ed Bott’s Microsoft Report, where his poll on digital media ethics has garnered an overwhelming, and highly educational, response.
October 8th, 2007
In the trenches with Live Web law at EFF's Bootcamp
If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?
EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.
This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)
I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:
Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’
For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.
Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)
(Image by A. www.viajar24h.com, CC Attribution-2.0)
September 17th, 2007
IP and the user generated economy at TechCrunch40
Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.
StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.
It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.
Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.
Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.
June 20th, 2007
Viacom and YouTube lawyers and others are in violent agreement: intellectual property won't kill social media
There has been a good deal of violent agreement thus far here at Supernova, but I was pretty surprised at the degree of it we had on the panel I moderated this morning, captioned Will Intellectual Property Kill Social Media? The answer was resoundingly “no,” and the converse also held true: social media won’t kill IP, either. Instead, they’ll find a way to productively co-exist, or so we all seemed to think. In addition to me, “we all” consisted of:
- EFF Senior Intellectual Property Attorney Fred von Lohmann
- Dabble Founder and CTO Mary Hodder
- Viacom Senior Vice President and General Counsel Mark Morril
- YouTube General Counsel Zahavah Levine
- Morgan Lewis IP partner Ron Dreben
Despite her protestations to the contrary, the BBC’s Alice Taylor took excellent notes of the session so I encourage you to check them out.
I realized about midway through I’ve been in sessions that sounded like this one before — but not at a conference, at a mediation. There was a stunning amount of agreement between Zahavah, Mark, and Fred about things like what should be done about non-transformative, verbatim copies of unlicensed works posted by users simply to make them accessible or more accessible (i.e., rightsholders should have streamlined and effective ways of policing them), and the social importance of the broad-based creativity and communication unleashed by social media tools (i.e., they must be preserved and encouraged to flourish). With all the consensus we had, if I hadn’t known there was a $1 billion lawsuit pending over these issues, if you’d tried to convince me of this afterward I’d have had to laugh in your face.
All of which leads me to shift my personal take on the likely outcome of Viacom v. YouTube: I’m now in the camp of folks convinced this is headed for a business, out-of-court solution. It felt like if we’d had a bit more time and one of those “lawsuit whisperer” mediators, we could have had one today. (Of course, Mark and Zahavah were speaking in their personal capacities, not as official company representatives; yada yada.) Such an outcome might not have the imprimatur of judicial precedent, but might nevertheless have the same kind of domino-tipping impact on similar future disputes.
[tags: supernova2007; viacomvyoutube; intellectualproperty; copyright; socialmedia]
April 23rd, 2007
Supernova: will intellectual property kill social media?
Kevin Werbach just posted the draft agenda for the upcoming Supernova conference. I'll be moderating a session at the Challenge Day on June 20 titled "Will Intellectual Property Kill Social Media?," and we've confirmed the following stellar panel to take on this topic:
- EFF Senior Intellectual Property Attorney Fred von Lohmann
- Dabble Founder and Chairman Mary Hodder
- Viacom Senior Vice President and General Counsel Mark Morril
- YouTube General Counsel Zahavah Levine
- Morgan Lewis IP partner Ron Dreben
I'm kind of beside myself about that lineup. Here's the description of our session from the conference site:
The promise of social networks, video sharing, and online communities goes hand-in-hand with the challenge of unauthorized use. Yet some see the legal and technical responses to that challenge doing more harm than good. Can we find an accommodation between the explosive creativity of social media and the constraints of intellectual property law?
If you have thoughts, suggestions, questions, or provocations you'd like to put to the panel, I'm all ears.
March 23rd, 2007
Got user created content plus an API? Be sure to plug your copyright hole.
Yesterday, I was extolling the policy virtues of automation at VON 2007. Today I was reflecting that until super-intelligent agents arrive and do it for us, humans need to be sure to actually read the documentation attached to the APIs enabling some of the most compelling automated transactions and interactions we see today.
I spent the day at Under the Radar, which lived up to its reputation as a very cool event. Dan Farber blogged much of the coolness, and I Twittered some as well. But one thing caught my attention as a slumbering yet big issue for Live Web companies: if you offer an API, and well you should, people are going to use it. However, they might not be all that careful about reading and following your API's terms of service — assuming, and let's hope it does, your API has terms of service. This is true even when the people using your API are in another part of your very own company. (See: OUTRAGEOUS: Yahoo!™ STEALS copyrighted photos from Flickr users!)
Consider this scenario:
- Site 1 provides a platform for submission and sharing of user generated material.
- Site 1 offers APIs enabling third party mashups of Site 1's user submitted material in heretofore unimagined, creative ways.
- Site 1 neglects to give users the means to affirmatively license their submitted material for third party use; or, a large number of users decline to license, even though given the chance.
- Site 1 fails to warn Site 2 (and Sites 3 - infinity) that some or all of its users' submissions are not licensed for third party use.
- Site 2 develops an application, using Site 1's API to make Site 1's user submitted materials available for use or viewing by Site 2's users.
- Mayhem, outrage, rioting in the streets, denial of service attacks, etc. ensue, instigated by Site 1's ticked off users.
There's a twofold lesson here. First, if you're going to make user submitted material (ex)portable and mashable through an API, provide a licensing mechanism for your users. While you're on the right track when you "encourage users to contribute their creations to the public domain or consider progressive licensing terms," Ev and Biz, as a practical matter without a convenient and automated means to apply such terms everything users submit will be "all rights reserved." Flickr's incorporation of Creative Commons licensing means developers using the Flickr API can readily incorporate tens of millions of Creative Commons licensed works into their products and services. I'm not sure developers using, for example, the Twitter API (checked out Twittervision yet? mesmerizing) can incorporate any Creative Commons licensed works — and that's not because Twitter users don't want to license their work.
Second, API terms of service should alert developers to this napping but particularly grumpy grizzly. Flickr's does this nicely:
1. Licensed Uses and Restrictions.
The Flickr APIs are owned by Flickr and its parent company Yahoo! Inc. (hereinafter "Flickr") and are licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These terms define legal use of the Flickr APIs, all updates, revisions, substitutions, and any copies of the Flickr APIs made by or for you. Flickr user photos are owned by the users (the photographers) and not by Flickr. All rights not expressly granted to you are reserved by Flickr.
a. You shall:
- Comply with the Flickr Community Guidelines at www.flickr.com/guidelines.gne, the Flickr Terms of Use at http://www.flickr.com/terms.gne, and the Yahoo! Terms of Service at http://docs.yahoo.com/info/terms/.
- Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn't own the images - Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr's provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners' requirements and restrictions, which may include "all rights reserved" notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners' requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: www.creativecommons.org or www.flickr.com/creativecommons.
- Comply with any other terms and conditions a user has attached to his or her photo. For example, if a user marks a photo as "private" after using your service, your application must reflect those changes as soon as reasonably possible. If your application has any cached copies of photos that have become "private," you must remove as soon as reasonably possible.
- Remove from your application within 24 hours any Flickr user's photos or other information that the owner of the photo asks you to remove.
- If you use the Authentication APIs, insert a standard header that we will provide into pages you build that access the Flickr API. It's important to us that users have an easy way to return to Flickr if they wish, and have some reference point (the logo) to show them that they're still connected to Flickrland. http://www.flickr.com/services/partners/.
- Disclose in your application through a privacy policy or otherwise displayed in the footer of each page, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers.
These terms, by the way, are right in line with the principles of the Attention Trust; bravo, Flickr.
"Flying and virtual" contracts like machine readable licenses are absolutely fantastic. Please just make sure that in our exuberance to encourage uptake and creativity through APIs, we don't make the mistake of forgetting about such licenses altogether, or of remembering them when it comes to user submissions but forgetting when it comes to API documentation and use.
March 14th, 2007
Viacom v. YouTube represents a watershed moment in video policy
Point 1 about Viacom v. YouTube: There is no calling how this case will come out if/as the parties pursue it through the federal courts —
Section 512 says Web site operators must not "receive a financial benefit directly attributable to the infringing activity" and that they must not be "aware of facts or circumstances from which infringing activity is apparent."
In practice, that language is sufficiently imprecise that it permits lawyers for both sides to argue that it buttresses their position.
Even the U.S. Supreme Court's decision in the Grokster file-sharing lawsuit hasn't resolved this question. The court said that someone who distributes software with the clear intention of promoting copyright infringement can be held liable — but nobody, not even Viacom, has suggested that YouTube's executives have been as brazen as the founders of file-swapping companies years ago.
Robert Tur's lawyer Francis Puzzilli (on the DMCA defense in Tur v. YouTube):
They hold it. They store it. They enable it to be categorized. There are service providers — utility companies, so to speak — and there are content providers. And I would be very surprised at how [YouTube] could possibly qualify as an ISP within the meaning of (the act).
Siva Vaidhyanathan (discussing Google Library) on the Southern District of New York:
Look, when it comes to copyright, the Southern District of New York and the Second Circuit do not make good law. Learned Hand has been dead a long time. The chances of good law coming out of the home turf of Time Warner, Viacom, and the News Corporation at the behest of some punk-kid company from California are as slim as those of good wine coming from New York. I sure wish New York produced good wines. And I wish SDNY and the Second Circuit understood digital copyright better (see Universal v. Reimerdes). But we shall be waiting a long time for both these things.
Point 1a about Viacom v. YouTube: An out-of-court, business driven settlement can be very tempting —
There's no way this gets settled with Google paying any actual damages. Google will be furiously working to sign a deal with Viacom to get this lawsuit to go away and a licensing deal in place. They’re on a very slippery slope right now, with the Napster carcass lying limp at the bottom.
There's no denying the filing of this suit is just the latest move in a very large chess game the outcome of which may ultimately turn more on business considerations than policy ones.
Point 2 about Viacom v. YouTube: Google's legal team understands the short term good/long term harm tradeoff involved in settling these kinds of disputes —
Google's senior litigation counsel Michael Kwun: "If we don't at least litigate to the point where we get rulings on the issues that matter to us, we’re left with less clarity in the law."
EFF's Fred von Lohmann:
So I think the YouTube acquisition may well represent a legal opportunity for Google (and the Internet industry generally), rather than a vulnerability. After all, litigation to define the copyright rules for new online services is inevitable — better to choose your battles and plan for them, rather than fleeing the fight and letting some other company create bad precedents that will haunt you later.
Concluding footnote about Viacom v. YouTube —
Next week's Video on the Net conference, with its opening day policy summit and concluding day policy panel (which I'm on), has been hit with a discussion bomb of thermonuclear proportion.
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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