Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.

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Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

– For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

– What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

– The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

– “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

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Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

– The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

– In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

– The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

– A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

– A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

– A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

– A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

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St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

– The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

– I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

– The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

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The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

– Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

– Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

Viacom Believes Fewer Than 60 Take-Down Mistakes

I’ve been e-mailing with Michael Fricklas of Viacom since I posted about Jim Moore’s home video that got caught in Viacom’s 100,000 take-down push on Friday. Mr. Fricklas wrote to me a few times during their process of assessing how many errors they made out of 100,000. Today, he wrote: “… we’re achieving an error rate of .05% – (we have under 60 errors so far)” and that “we’ll know more as users respond to communication from YouTube”. He noted also: “Wish it was zero.”

So, let’s take Viacom at its word for the moment. A few interesting questions of law pop out from here:

1) If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have when they choose to push back? Just to have the file put back up? Do they have a further claim against Viacom? Or against YouTube, for that matter?

2) Mr. Fricklas asserts that “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” I suppose that Section 512(g) does include the presumption that YouTube (or similarly situated party) must hold on to the allegedly infringing material once taken down, since they may have to put it back up pursuant to counter-notification. But the process of what the intermediary has to do is not explicit.  What happens to the analysis if YouTube has retained nothing, and the original person who posted it retained nothing but has a very strong fair use case or an outright winner on copyright grounds? Does DMCA need to say more than it does by way of a process to protect users?  There’s also the question of what policy is required to handle repeat infringers, which has caused a lot of confusion on university campuses.
Some good exam questions buried here.

Another Video for the Put-Back-Up List?

As with Jim Moore’s video — now famous thanks to Cory Doctorow at Boing Boing — you can decide for yourself whether Viacom’s cease-and-desist letter should have resulted in Jaegercat’s video being taken down at YouTube.

In an e-mail from .sg, (which she said I could republish), Jaegercat writes: “My video ‘Beat Police’, an original work, was one of the ones on which Viacom is claiming copyright. … My video used to be here but is also here (and clearly not Viacom copyright). … The video itself took me 5 months to make. It containes 3D models made by third-parties, each of which is used with permission. … The song was written and performed by my husband and has no third-party components. … And yes, I can prove all of this as I have all original working files, and all of the licences giving right-to-use. … The video itself was shown in a film festival last year, as an original work, and the defamation in the Viacom/Youtube statement could therefore cause me real damage.”

One does wonder about the statement: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission”. In some cases, it sounds like that’s not true with some of these take-down notices. I suppose you run up against a damages question, but it certainly seems like a user might have a valid concern about defamation.

A Voice from Outside the US on the Viacom-YouTube Matter

Jaegercat” writes in a discussion board on this topic: “I don’t live in the US. I’ve already responded with the counter-notification via fax, but I have no idea how to proceed from here if they don’t respond. The video that they pulled was an original work that took me around 5 months to make, that has been shown in a film festival, and I feel violated at the public accusation that this wasn’t my own work. … I’m definitely interested in collective action, even though I don’t even know if I’m entitled to be part of it.”

What's the "Day 2" Story on the Viacom-YouTube Tussle?

Google News suggests that there have been about 500 stories so far written in this news sources that they scan on the topic of Viacom’s 100,000 take-down notices to YouTube users. Most of the stories focus on the business dynamics of the matter, understandably: 1) why Viacom did this; 2) the possibility (or likelihood, or unlikelihood, depending upon whom you ask) of a license deal in the offing between the two entities; 3) the response from YouTube/Google to the take-downs; 4) the status of the enhanced tools for copyright owners who want to track their works that they believe to be illegally posted; and so forth.

A few possible Day 2 stories that have not been discussed extensively in the MSM coverage, and of greater interest to me:

– How many of the 100,000 notices were mis-fires, like the one to Jim Moore? A few hundred, a few thousand? (Is this person one of them?) And what is the impact of those mistakes? Is there any pushback against the copyright holder who made these mistakes? Any liability, say under DMCA Section 512(f)? (Top10Sources, with which I work, is seeking to aggregate these stories and links to the clips that are put back up so we can all judge for ourselves.)

– Does it matter under the law whether YouTube provides the enhanced copyright protection tools that are bandied about in many of these articles? Could they release them selectively, say to those who license with them and not to those who do not?

– Why isn’t Viacom doing what CBS has done, for instance (as a Forrester analyst is asking on Charlene Li’s blog)?

– Who will build a service to compete with YouTube? Will the policy for handling copyright matter, one way or another, in terms of customer adoption of competing services?

– Is there a copyright reform strategy, and/or one or a series of business ideas (like Lisensa, e.g., with which I am involved) or extensions to NGOs like Creative Commons, that can help address the copyright crisis that continues to rage on the web?

Community Organizing Around Takedowns

Jim Moore has reposted, on Google Video (heh), the “offending” work that prompted the nastygram from Viacom today. It’s hard to imagine what might have prompted the take-down. As JZ asks in the comments from an earlier post, what can we surmise about the tactic in getting to 100,000 take-downs? Was some bot scanning for keywords in titles, say “Redbones”?

Perhaps we can get to the bottom of it by aggregating other misfires from in this massive take-down push. At TopTenSources (please see my disclosures), here’s a page where you can add a link to your video or enter comment about the take-downs, as well as an e-mail address — [email protected] — to which you can send word of your taken-down video. Is Jim’s video the only one that shouldn’t have been flagged? Or are there others out there — possibly with no offending content, or possibly where a fair use defense might apply?

How Many Jim Moores Are Out There? Viacom's Cease and Desist Letters … for Home Videos?

Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.

The operative question related to this 100,000 c&d day: How many Jim Moores are out there?

And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.

Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:

“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?