Posts Tagged ‘DMCA’

YouTube News: Content Providers Trade Takedowns for a Piece of the Action

The New York Times reports that Hollywood studios and other big content providers are no longer leaping to send DMCA takedown notices when John Q. Infringer posts a hilarious clip from Good Luck Chuck. Sensibly, they’re letting YouTube keep the clips up in exchange for a chunk of ad revenue. YouTube benefits too — the Google subsidiary’s revenues are way up and the site is nearing profitability for the first time.

Google’s CEO Eric Schmidt on YouTube’s strategy:

The strategy had been to amass “an audience first, then figure out the tools that will create the revenue, then you go to the content partners and say, ‘Hey, look guys,’ ” Mr. Schmidt said. “And I think we’re at that point now.”

Hey, wasn’t that pretty much what Viacom alleged YouTube’s strategy to be in its failed billion-dollar lawsuit against YouTube? Also, doesn’t Google’s evident ability to find copyrighted user-posted content on YouTube, slap ads on it, then find the copyright owner in order give it a share of the ad revenue undermine Google’s argument in that same lawsuit that it couldn’t be expected to monitor user-posted content to that degree? I suppose it’s a moot point, since the U.S. District Court for the Southern District of New York, ruling in favor of YouTube/Google, said that the DMCA didn’t impose that level of responsibility on YouTube and that YouTube’s demonstrated ability to comply with massive takedown notices from Viacom proved the DMCA’s notice-and-takedown scheme works just fine to control infringement.

In terms slightly less polite than Schmidt’s, Google’s copyright strategy has often involved taking hold of other people’s content, finding an audience for it, and then saying to the copyright owner, “Hey, we’ve just found an audience for your content, do you want to file suit against the eight-hundred-pound gorilla of the Internet, or do you want to work with us to monetize this opportunity?” It’s a risky strategy but it makes practical sense, and, as seen here, it can produce wins for everyone involved.

Another Google product/division which I expect to eventually take this road is Google Books. I’ll be very surprised if, after digitizing all those millions of books, they don’t create an  opt-in e-book program or cut deals with copyright holders to insert ads into the samples already available online.

Thanks to @THEMIGHTYTRINI for the tip.


Las Vegas Newspaper Continues to Sue Bloggers Into Submission

As we’ve reported before, the Las Vegas Review-Journal has become quite aggressive in its approach to copyright enforcement. It assigns rights to a firm called Righthaven, which then sues the alleged infringers. An article in Vegas Seven explores the controversy in greater depth. A communications professor calls Righthaven’s pattern of suing without issuing cease-and-desist letters or takedown notices “legal but sleazy.” Righthaven’s CEO responds that his company could not “get compensated in an appropriate way… if all we did was send out takedown letters like a charitable organization.”

Wired is covering the Righthaven story as well, reporting that, as many suspected, the Review-Journal and Righthaven are pursuing these suits not as a means of protecting the value of the Review-Journal’s work but in order to create a separate revenue stream from settlements. One Righthaven defendant states in the article that the allegedly infringing material on his site was posted by a user, entitling him to a takedown notice prior to suit under the DMCA, but that no such notice was issued.

Meanwhile, the Blog Law Blog (great blog name and subject matter!) reports that Righthaven sued Anthony Curtis, editor of the Las Vegas Advisor, for reposting a Las Vegas Review-Journal article that was written about Curtis and a survey he conducted of Las Vegas entertainment ticket prices. Back in the pre-Internet era, this was known as saving your press clippings. Today, it’s potential lawsuit fodder, it seems. Read more at the Daily Online Examiner.

Techdirt offers more coverage under the blunt headline “Righthaven Ramping Up its Copyright Trolling Business.”


ACTA: The Little International “Anti-Counterfeiting” Treaty That is Scaring the Pants Off People Everywhere

The Anti-Counterfeiting Trade Agreement (ACTA) is a new international treaty supposedly targeted at counterfeiters. However, supporters of liberalization of copyright law have been expressing serious concern that ACTA has become another vehicle for BigCopyright (Disney and its ilk) to impose more stringent copyright restrictions on the United States, among other countries. It doesn’t help that the ACTA drafting process has been secret, and a draft was just released to the public in April, after a significant period of negotiation.

The Electronic Frontier Foundation has been expressing alarm about ACTA for years. Meanwhile, President Obama has repeatedly stated his support for ACTA.

This past week, Ray Dowd at the Copyright Litigation Blog read the text of ACTA and had this to say: “I thought that I would find the concerns I’d seen floating around the internet to be a little overblown. In fact, I think that the concerns of the EFF are understated. . . . [T]he text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don’t think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.”

Similarly, Techdirt says that while the ACTA draft does not codify the “three strikes” approach (read: banning repeat infringers from the Internet entirely) being bandied about in European countries, including the UK, the draft apparently states that Internet service providers must have policies to deal with infringing works in order to have access to “safe harbor” protection under ACTA, and the given example of such a policy is termination of repeat infringers – the foundation of the “three strikes” approach.

Additionally, Techdirt reports that the ACTA draft would export the sort of notice-and-takedown regime, part of the safe harbor provisions already codified in US copyright law in the Digital Millennium Copyright Act, to the rest of the world, despite the fact that these provisions allow action against alleged infringers without proof of actual infringement, and are widely abused in practice.

One more reason to worry about ACTA: Andrew Moshirnia of the Citizen Media Law Project reports that the EU has proposed adding third-party criminal liability to ACTA. In other words, parties who aren’t themselves infringers but who engage in acts of “inciting, abetting and aiding” infringement might be subject to criminal penalties. Moshirnia says:

First off, this seems to criminalize most Internet . . . everything. . . . Second, this would clearly change United States law, something that the supporters of ACTA have claimed that the agreement would not do. . . . Third, introducing criminal penalties to a volatile field like intellectual property is a recipe for disaster.

Are you nervous yet?

Image: The above photo is a 2005 shot from Flickr user bsdfm, who writes: “The label reads: =if(Label=”",”RMA”,”?”) This is an Excel function. It also would work in Microsoft Access. The factory is using Excel or Access to store all the logos for the different jeans they make and then print them onto leather. This is what happens when there is a bug in their software. Chatuchak market, Krung Thep, Bangkok, Thailand.”


Google Deletes Music Blogs – What’s Going On? (Plus: How to Respond to a DMCA Takedown Notice)

The scandal already has a name – Blogocide 2010. In the first week of February, Google deleted several music blogs entirely for alleged violations of the Digital Millennium Copyright Act. Bloggers reacted with outrage. As I write this, Google has just posted an explanation of their actions, which specifies, “[w]hen we receive multiple DMCA complaints about the same blog, and have no indication that the offending content is being used in an authorized manner, we will remove the blog.”  Google has restored one blog which Google concedes did not receive notification of DMCA complaints, but the others remain deleted as of the evening of February 11th.

If you’re a music blogger who uses Blogger or any other remote hosting service, you may be wondering if you will be the next to lose your blog. You may have already received a DMCA takedown notice. Below, we discuss the chain of events that likely led up to Google’s deletions of the offending blogs, as well as what you can do if your blog receives a DMCA takedown notice.

How Does This Happen?

The chain of events doesn’t start with Google. DMCA notifications are sent by copyright holders or their representatives to entities hosting allegedly infringing content. In this case, Google owns Blogger, which hosts the content of the music blogs, so copyright holders send notifications to Google regarding particular Blogger accounts. Then Google contacts the individual Blogger account holders and says “we received a notification that Content Item X potentially infringes on someone else’s copyright, so take it down or else.”

Some people seem to believe that the DMCA itself is an organization. It’s not — it’s a law. As seen in the following post to Blogger’s complaint forum by Bill Lipold, the owner of the deleted blog IRockCleveland, the organization seeking to enforce the DMCA in his case was the International Federation of the Phonographic Industry, a multinational lobbying organization which represents record labels in pursuing anti-piracy enforcement on a worldwide basis.

In Lipold’s case, Google forwarded him approximately three takedown notices in fall 2009. Lipold seems to have ignored them until his blog was deleted, at which point he posted a complaint on the Blogger support forum. In his post, he informs Google that he believed he had permission to post an mp3 from the band BLK JKS and posts an email from the record label Secretly Canadian, whose publicist expresses confusion about the takedown notice and apologizes.

Looking at the IFPI’s roster of labels, it appears Secretly Canadian is not an IFPI member. However, BLK JKS’s album on Secretly Canadian is distributed by the Alternative Distribution Alliance (ADA), a distributor which is 95% owned by Warner Music Group (WMG). Warner Music Group is an IFPI member. The other two artists about which Lipold received DMCA notices, Spindrift and Jay Reatard, also have releases distributed by ADA.

In other words, the likely chain of events was as follows: indie label’s publicist sends out a promo mp3 to a blogger. Blogger posts mp3, as publicist intends. Indie label’s major distributor reports blogger’s posting of mp3 to blogger’s ISP as infringement. Blogger’s ISP deletes blogger’s blog.

They have a word for this sort of thing. However, it appears that Lipold made an important mistake of his own: he ignored the takedown notices simply because he believed he had permission to post the mp3s he posted. Blogger, ADA and the IFPI, on the other hand, likely did not know that Lipold had permission, presumably because Lipold’s posts were not reviewed by a human being, but by a bot crawling the web looking for infringing music files. Although he may have been entirely in the right legally, Lipold did not take steps to address and clarify the dispute until it was too late. Now his blog is strumming a digital harp in Internet heaven.

Why is Google Being So Mean?

Google is not being mean. Google is trying to avoid secondary liability for the copyright infringement of others by demonstrating that Google responds to reports of potentially infringing material on its own site (Blogger) as quickly as possible. In other words, Google is trying to avoid being sued itself for allowing copyright infringement to continue after Google itself has been notified of illicit activity. Google is simply trying to protect itself. It is most likely not targeting any particular blog out of malice.

I Got a DMCA Takedown. What Can I Do?

Lipold and his fellow bloggers should have taken affirmative steps to respond to the takedown notices and protect themselves. Below, we’ll discuss what you can do if you find yourself in a similar situation.

DISCLAIMER: The following is meant only to sketch out potential courses of action. It is not legal advice; please do not rely upon it as if it were.

1) Send a counter-notification ASAP. The DMCA includes its own means of responding to a DMCA takedown notice — the DMCA counter-notification, a form in which a notice recipient explains why the notice is in error. Google’s own instructions for creating and sending a counter-notification can be found here. Note that you have to assert a legitimate reason why the takedown was in error. Alternatively, Chilling Effects, which is a clearinghouse for information about DMCA takedowns, has an automated form here which you can use to create a counter-notification. Note that you must submit your counter-notification by snail mail or fax. Don’t wait to respond — it appears that the blogs targeted in Blogocide 2010 may not have responded promptly to the DMCA notices forwarded by Google. When Google sent notices and got no response, it felt it had no choice but to proceed as if the offending blogs were posting material without authorization.

2) Contact a lawyer. If you are really not sure what is going on, talk to a lawyer who is familiar with copyright and the DMCA. He or she can advise you how to proceed and prepare correspondence to record labels, ISPs and other parties on your behalf. You might have to pay your attorney for a few hours of work, but you’ve put a lot of time and energy into your blog.

3) Alternatively, try contacting the Electronic Frontier Foundation. The EFF is a public interest organization which works on behalf of electronic freedom and privacy. If you have a meritorious claim, the EFF may be able to put you in touch with a lawyer who can assist you on a pro bono basis. They host the Takedown Hall of Shame and offer very good advice on dealing with Youtube DMCA takedowns which can be applied to other takedown scenarios as well.