Why Moderating Comments Doesn't Remove Section 230 Protection, And Why More Lawyers Need To Understand This

from the on-the-other-hand,-it-gives-us-plenty-to-write-about... dept

Here at Techdirt, we've covered a large number of bogus C&Ds. One thing many of them have in common (besides being vague about what they find actionable) is a misunderstanding of the Section 230 protections afforded to site owners. It seems as though that part of the law gets lost when aggrieved parties are offended by comments or forum posts.

And while it's fine for companies and individuals to be confused about who's ultimately responsible for allegedly defamatory posts, it's very definitely not OK when their legal representation makes the same mistake. As we covered recently, a financial blogger received a C&D from a trust company over a comment made by a forum member. The first letter completely avoided discussing Section 230 (but made room for trademark and copyright infringement somehow)... which was fine, seeing as it was written by the company's chairman. However, another letter, written by an actual law firm, acknowledged these protections but then made the claim that because the blogger had the power to moderate his forums, he was no longer protected by Section 230.

But that's completely wrong. And it's not just one lawyer. It's several of them. The first mistake is targeting a site owner for third party content. This is compounded when legal reps operate under the false impression that doing anything to comments and forum posts (deleting, editing, etc.) revokes Section 230 protection.

Marc Randazza ran into exactly this problem while attending an accredited CLE (continuing legal education) "Attorney At Blog" conference recently. (h/t to Scott Greenfield)

I want to clear up one bit of bullshit that seems to continue to walk the earth, sort of like a legal bullshit zombie. The bullshit is the notion that if I delete ANY comments on this blog, then I lose my Section 230 immunity.

This comes to mind because this Friday, I had the pleasure of speaking at the Attorney At Blog conference. During that conference, a very nice lady “informed” the audience that her blog would delete problematic comments, but they couldn’t, lest they lose Section 230′s protection.

I felt like a dick having to correct her. But, I can’t let a room full of people leave dumber than they came in. If you come to a place for CLE credit, the least you should do is learn something true, right? Shockingly, she defended her position by saying that it was based on the advice of her attorney. I advised her to fire that attorney immediately.

This is a very common -- and stupid -- misconception. Any site owner can moderate heavily, or not at all, and still be equally covered. The relevant part of the law is here:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…

This means site owners are free to handle their comment threads as they see fit. Here's how Randazza puts it.

I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.

I can understand why parties miffed about comments or forum posts might make the mistake of singling out site owners in their hurry to hold someone, anyone responsible for their ruffled feathers and hurt feelings. But what's not excusable is legal representation making that same mistake for them. They're paid to know the applicable laws and if they're not clear on the subject, they should do a little research.

And it's completely ridiculous that one attorney would regurgitate another attorney's assertion that moderating comment threads somehow makes site owners liable for the words, links, etc. of their readers.

Those whose lawyers have encouraged sending bogus C&Ds targeting site owners over third-party content need to take the same advice Randazza offers to site owners.

If you’re a Section 230 protected website operator and your lawyer has ever told you that you can’t act responsibly, lest you lose protection, then pick up your phone and dial his number (or her number, whatever). I presume you’ll get his voicemail. Leave this message “Hey, you’re either really stupid, or fucking dishonest. In either event, you’re fired, fucktard.”

I realize this protection is frustrating for everyone, from companies that can't take a little criticism to people who want their naked photos removed from revenge porn sites, but without it, the internet would be a barren, listless place. This culpability exception allows for a very vibrant web. If Reddit, Facebook, Twitter and millions of others were responsible for the content posted by their users, they would never have come into existence. Or they would have been sued off the face of the internet years ago.

This may seem like an unhealthy state of affairs for those currently aggrieved, but when you take into account the fact that a vast majority of internet users are generating billions of pieces of third-party content every day without defaming someone (or posting their ex's photo stash), you may finally appreciate why this protection is essential. Imagine the web as a top-down distribution system, more akin to a newspaper or TV station, and you're on the right (and very depressing) track.

Ultimately, the problem is with the lawyers who don't understand the law they're quoting. Site owners can be easily cowed by ignorant splashes of legalese on law firm letterhead, and for some lawyers, that's just as good as actually understanding the law -- if it has the desired effect. But people aren't paying legal reps to misunderstand the law for them. That's something they can do on their own. And when an attorney spews stupidity -- and cites another attorney's stupidity to back it up, that can't be addressed fast enough. Knowledge should be spread. There's no need to spread stupidity. It's not like the world is lacking.

Filed Under: lawyers, safe harbors, section 230

Bad Ruling Says CafePress May Not Qualify For DMCA Safe Harbors

from the dangerous-rulings dept

Every time you think something is obvious and "settled" within the law, along comes some random judge to disrupt things. The latest involves CafePress, the very popular service that lots of people use to easily setup print-on-demand offerings for t-shirts, mugs and a variety of other things. At issue in the lawsuit is that a user uploaded someone else's photograph, leading to a lawsuit against the uploader and CafePress. Under the DMCA's safe harbors, CafePress should pretty clearly be protected, but tragically, the judge thinks otherwise. Even though there are tons of cases highlighting how the service provider definition is broadly applied to, well, online service providers, the judge here seems to think that because CafePress sets the prices for the goods sold, that somehow takes away the safe harbors. From the ruling:

Here, while CafePress is an e-vendor similar to Amazon, eBay, and Photobucket, CafePress's business varies somewhat from these other entities. The largest difference is that CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace. Indeed, CafePress's policy of determining retail prices for products sold through the Marketplace and paying users only a royalty or commission for the sale of their products highlights the fact that CafePress has gone beyond operating a service that merely facilitates the exchange of information between internet users. As such, the Court cannot say, as a matter of law, that CafePress is a "service provider."

But that makes no sense. The company is still, absolutely, a "service provider." As Eric Goldman notes at the link above, in which he says "this opinion is all kinds of crazy:"

Of course CafePress meets the statutory definition of a “service provider” for 512 purposes. It is a “provider of online services.” .... Most fundamentally, the court conflates CafePress’ online and offline activities. I think CafePress clearly qualifies for 512 protection for its online hosting activities..., but 512 doesn’t protect its offline print-on-demand manufacturing and delivery business. Thus, eBay and Amazon are fully protected by 512 for running online ads in their marketplaces. Because they don’t do any 512-disqualifying order fulfillment, they get 512 protection for all of their marketplace operations. CafePress should get identical 512 protection for its marketplace operations. This ruling should panic eBay, Amazon and the many other marketplace operators who think they have 512 protection.

Equally troubling may be the fact that the Judge seems to think that basic metadata stripping in photographs may run afoul of a bar on interfering with "standard technical measures" to protect the work. But that raises the question of whether or not stripping basic metadata is really interfering with "standard technical measures." That seems like a pretty big stretching of the definition of "technical measures."

Of course, it's unclear if the case will go much further. The photographer hadn't registered the copyright by the time the photos were uploaded, so there are no statutory damages on the table (and real damages are quite limited). But, there are always folks out there eagerly looking for rulings they can cite that show the weakening of safe harbors. While it's only a district court ruling, I wouldn't be surprised to see it twisted around and showing up in other cases.

Filed Under: copyright, dmca, safe harbors, section 512
Companies: cafepress

The Rebranding Of SOPA: Now Called 'Notice And Staydown'

from the catchy-and-stupid dept

On Thursday morning, the House Judiciary Committee held its latest in a long series of hearings concerning potential copyright reform -- sometimes referred to as "the Next Great Copyright Act" after the Copyright Office kicked off the process with a talk on that topic (I'd quibble with the word "great" in there given how things are going so far). The latest hearing focused on Section 512 of the DMCA, better known as the "notice and takedown" provisions, or, more broadly, as the "safe harbor" provisions, which (mostly) protect service providers from being held liable for infringement done by their users. You've heard all of the arguments concerning this on both sides before -- and we had a post describing 5 myths likely to come up during the hearings (which did not disappoint). If you missed it, you can live through the torture below: Or, if reading is your thing, Professor Rebecca Tushnet did her usual amazing job of taking insanely detailed notes of both the speechifying section and the Q&A section. There's a lot to cover, so we're going to break it down into a few different posts. This one is going to focus on the catchy phrase that came up repeatedly throughout the hearings: the idea that rather than the "notice and takedown" provision we have today, there should be a "notice and staydown." While mentioned repeatedly during the hearing, the concept was also outlined by two of the more maximalist (and clueless) defenders of extreme copyright law, Reps. Judy Chu and Tom Marino, in an opinion piece pushing for such a "notice and staydown" concept.

The idea is, more or less, that if a site receives a takedown notice concerning a particular copy of a work, it should then automatically delete all copies of that work and, more importantly, block that work from ever being uploaded again. This may sound good if you're not very knowledgeable about (a) technology and (b) copyright law. But if you understand either, or both, you quickly realize this is a really, really stupid solution that won't work and will have all sorts of dangerous unintended consequences that harm both creativity and the wider internet itself.

First, as was pointed out in the 5 myths piece, content itself is not illegal. It's actions concerning a piece of content. So, by doing a notice and staydown, you're guaranteeing that perfectly legitimate uses -- including both licensed uses and fair uses -- get blocked as well. That's because to determine if something is infringing, you have to view it in the full context. No matter how much some copyright maximalists want to believe that copyright is a strict liability law, it is not. The very same content may be infringing in some cases and not infringing in others. Not checking the context of each use would clearly block forms of perfectly legitimate expression. That's a big problem.

Second, and perhaps even bigger, is the fact that such a law would more or less lock in a few big players, like YouTube, and effectively kill the chance of any startup or entrepreneur to innovate and offer a better solution. Throughout the hearing, you hear people refer to Google's ContentID system -- which takes fingerprints of audio and video works and matches new uploads against it -- as an example of a proactive system "done right." Except, that system cost Google somewhere around $50 or $60 million to build. No startup can replicate that. And, even then, if you ask plenty of regular YouTube users, ContentID is really, really bad. It kills off fair use work all the time, it creates tremendous problems for legitimate and licensed users of content who suddenly find their content pulled and strikes on their account. It more or less proves that even if you have all the money in the world, no one can yet build a fingerprinting system that is particularly accurate.

If such a rule did get put in place, however, it would basically just guarantee that the few big players who could afford both the technology and the legal liability/insurance over the inevitable lawsuits, would be able to continue hosting user generated content. That's more or less ceding much of the internet to Google and Facebook. Considering how often copyright maximalists like to attack big companies like Google for not "sharing the wealth" or "doing their part," it's absolutely ridiculous that their biggest suggestion is one that would effectively give the big internet players more power and control.

The reality of the situation is that "notice and staydown" is really just SOPA 2.0 in disguise. The whole goal of SOPA was to basically to shift the issue of copyright infringement to the tech industry from the MPAA/RIAA. The idea was that if you add liability to the tech players, then it would magically force the tech companies to figure out a way to "clean up" infringement (leaving aside all the collateral damage). That's the same thing with "notice and staydown." The real issue is trying to shift the liability burden to tech companies.

It's the same story over and over again. The business model that the legacy players used to rely on has melted away in the age of the internet. Rather than truly adapt and change, they just get jealous of successful tech companies, and think that those companies somehow "owe" them money. And the best way to legally do that is to get politicians to magically place legal liability on those companies, so they have to pay up. Notice and staydown has nothing to do with actually stopping copyright infringement. It's about taking the burden off of the legacy players, easing the need for them to adapt and change, while trying to force big tech companies to pay up. The irony, of course, is that in the process it would harm much needed innovation from startups and entrepreneurs (the companies that the content creators really need the most) and lock in bigger, more powerful internet players.

Filed Under: 512, content id, dmca, judy chu, notice and staydown, notice and takedown, safe harbors, sopa, tom marino

5 Myths We're Likely To Hear At Tomorrow's DMCA Hearing

from the and-some-debunking dept

Tomorrow, the House Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet is holding a hearing on the safe harbors of the Digital Millennium Copyright Act, Section 512, as part of a continuing reexamination of U.S. copyright law.  We cover this important framework frequently, because it has been instrumental to the growth of the Internet – by many accounts online safe harbors “saved the Web.”  Now that the DMCA is over 15 years old, a number of pervasive misconceptions have developed about its safe harbors.  Let’s consider some of the top DMCA misconceptions that we’re likely to hear tomorrow.

(1) “No one anticipated there would be so many DMCA takedowns.” (Also, “filter because whack-a-mole.”)

One of the critiques of the DMCA is that because it is used so frequently, it must not be working.  It is strange to argue that a system isn’t working when demand for it is going up, but I hear ‘the Internet must be filtered because whack-a-mole’ so often that if I owned the Whac-A-Mole trademark I’d be worried about it going generic.

It is true that DMCA takedowns are increasing.  This suggests rights-holders see value in the system, and that third-party takedown vendors are enabling more rights-holders to outsource policing their content at lower cost.  When Congress enacted the DMCA, it specifically legislated that online services have no continuing obligation to monitor Internet content, in Section 512(m)(1), acknowledging that there would be continued costs to enforcing rights through the DMCA.  Congress recognized that assigning this responsibility to online service providers ill-equipped to execute it would hamper the growth of online commerce.  It thus forged a compromise, ensuring that rights-holders would need to initiate takedowns, but would receive expeditious, extralegal relief in response to a complaint without the time and expense of going to court.  Some would prefer to unwind the compromise struck in 1998, however, and shift more of the burden of enforcing copyrights to service providers, perhaps through some form of content filtering.

(2) “Anyone can see there’s a lot of copyrighted content on the Internet.”   

It is not possible to ascertain on sight which works are copyrighted and which are not.  U.S. copyright law no longer requires ‘marking.’  More importantly, even for works with identifying information, it is impossible to determine which uses of works are licensed, or otherwise authorized by law.  One might simply assume that every digital file is copyrighted and be right most of the time.  This blog post, every email and selfie, and every cat video receives instant copyright protection.  With copyright’s low threshold of creativity, instantaneously attaching protection, and exceptionally long terms, it is hard for something not to be copyrighted.  But what should one do with the knowledge that every photo and email gets a century-plus of protection?  Obviously, no one wants to censor the famous Oscar “selfie” that went viral just because the copyright is owned by Ellen DeGeneres (or Bradley Cooper, or Samsung, or whomever…).  The fact that something is protected does not mean the rights-holder doesn’t want it online.

Often, when people refer to “copyrighted” content in this context, they actually mean “industrially produced creative works.”  More specifically, when someone says “there’s a lot of copyrighted content online,” what they really mean to say is “there’s a lot of stuff online that seems so professional that we should assume it was made by an industrial content producer, and that we should also assume they don’t want it online.”  Of course, this isn’t a particularly clear line: what metric should a hypothetical army of content reviewers apply in deciding how professional a work should be before it is purged from the Internet?

Even if there were a clear line, rights-holders of industrially produced creative works often approve of works being used online for promotional purposes.  And it isn’t just Oscar selfies.  In the Viacom v. YouTube litigation, it came out that Viacom’s marketing teams were secretly uploading its own works to YouTube, even after the lawsuit began, and its lawyers sued over works that had been uploaded to the site by its own personnel.  

Given billions of indexable pages, the absence of a reliable list (government-maintained or otherwise) of who owns or has licensed what, and the inherently complex contours of copyright’s exclusive rights and exceptions, only rights-holders are positioned to begin the process of enforcing their own rights.

(3)  Infringing content is “illegal.”

It is common to refer to infringing works as “illegal,” but this actually clouds the fact that the Copyright Act regulates actions, not content.  That is, a pirated work itself is not what violates the Copyright Act; the law is violated by the act of reproducing a work without authorization or as permitted by an exception.  In many cases this distinction doesn’t matter.  That doesn’t mean the point is mere semantics, however.  Because two different acts reproducing the same protected work may be alternately permitted and unlawful, depending on who did it and why, it is important to separate the infringement from the content.  For example, a law professor posting to YouTube the copyright announcement on an NFL game for her students to analyze in the classroom would constitute fair use, whereas an individual doing the same without any educational purpose might be labelled an infringer.  There’s nothing illegal about NFL football games (well, usually): it’s the act that matters.  Thus, it is important not to lose this distinction.

(4)  “Services filter for other illegal content; so they can filter for infringement.”

The previous point leads to this logical flaw.  The notion is that because some services attempt to filter wholly unlawful content, such as child pornography, they should also filter for lawful content whose use may be unlawful.  However, filtering any unauthorized Harry Potter for example, might also filter out Harry Potter reviews, book reports, and cultural studies.    Again, lawful content, used unlawfully, is not the same as unlawful content.  One cannot filter when lawfulness is context- and user-dependent, and even if that were possible, it is rarely stated when a use has been authorized.

(5) DMCA compliance is mandatory.

It isn’t.  Service providers may comply with the DMCA in exchange for the promise of liability limitations, and many services within the US and abroad (over 66,000 at last count) do so.  Notwithstanding that DMCA compliance can be a significant expense, particularly for smaller services, it is viewed by many as the cost of market entry: a regulatory obligation undertaken by responsible businesses.

That being said, DMCA compliance is not compulsory, a service can decline to comply with takedown requests — or even ignore them altogether.  As a standard business practice, this is a terribly bad idea, because of the potential exposure to copyright’s notoriously large statutory damages.  At times, however, online services can and do rightly refuse to comply with abusive requests by bad actors.  Attempts to get one’s business competition kicked offline, or to suppress criticism, embarrassing news, or disfavored speech are increasingly common.  (E.g., [1], [2], [3], [4]).  In each case that an online service stands up for users, however, it risks extraordinary liability if a court should later side with a complainant who the service initially concluded was not acting in good faith.

Reposted from the Disruptive Competition Project, DisCo

Filed Under: copyright, copyright reform, dmca, house judiciary committee, notice and takedown, safe harbors

Record Labels Lawsuit Against Vimeo Lipdubs Moves Forward, With Some Good News And Some Bad News

from the win-some,-lose-some dept

We've been covering the major labels' legal efforts against Vimeo for its encouragement of lipdub videos before (that these videos frequently help to promote songs and make them more popular isn't even something that the major labels seem willing to recognize). In a new ruling, a judge has allowed the case to move forward with an upcoming trial, thus rejecting a full summary judgment. The ruling contains a mix of good things and bad things. Let's explore a few of them

First, the court agrees that Vimeo in general is eligible to receive DMCA safe harbor protections. While the labels made a ridiculous effort to argue that Vimeo's policies against infringement weren't robust enough, the court notes that the law only requires a "reasonable" implementation of a policy. Basically, the labels complain that they don't like Vimeo's infringement policy, but the court notes (correctly) that the labels' disapproval of the policy doesn't invalidate the policy or take away Vimeo's safe harbor protections. In fact, it's nice to see the judge recognize that what's "reasonable" may change based on the state of the company itself, and the wider market:

The Court’s finding of reasonableness is also informed by the evidence of Vimeo’s business circumstances as they evolved during the relevant period. That is, the policies Vimeo implemented in the first several years of its operation, as described above, were reasonable ones in light of the fact that Vimeo was, at the time, a small service provider, the twenty full-time employees of which were tasked with processing only a trickle (zero to five) of takedown requests per month. The evidence reflects that as the flow of those requests increased, Vimeo’s policy became more robust—first in the form of a “three strikes” rule and a blocked video list, implemented at some point after Vimeo’s inception, and eventually in the form of the “Purgatory” tool, implemented later in October 2008. That Vimeo’s enforcement mechanisms advanced in step with the realities of its growing business further supports the reasonableness of its implementation system.

The court also rejects the silly argument that Vimeo's policy isn't good enough because it's not the same as YouTube's. The judge notes that this is a meaningless argument.

...simply because, as Plaintiffs point out, a YouTube user may earn two separate strikes for takedown notices received only three hours apart pursuant to a policy this Court has found to be reasonable..., it does not follow that Vimeo’s somewhat more lenient policy (three days, rather than two hours), creates a factual issue as to the reasonableness of that policy.

There's also a silly and somewhat ridiculous claim by the labels that because Vimeo lets people download the videos, they should lose their safe harbor protections. The court makes quick work of that argument:

Plaintiffs have provided no case law—and the Court is not aware of any—holding or even suggesting that a service provider must be denied DMCA safe harbor protection because it allows its users to download content.

Because of all that, Vimeo is able to get summary judgment on 144 of the 199 videos that were included in the lawsuit. But that leaves 55 which will go to trial. Ten of those were uploaded by employees. That quickly gets into a gray area. The DMCA only protects companies against actions of their users; not actions by the company itself. But... is a random employee using the company's tools to upload an infringing video an action by the company, or by the individual as a user. Here, the court decides that the issue is at least a big enough gray area that it should involve a trial rather than summary judgment:

Here, Plaintiffs cite evidence that Vimeo employees serve as an “editorial voice” for the Website... and emphasize that the web pages displaying these videos indicated that the video was posted by a Vimeo employee. In all but two of the videos, the web page also included the employee’s name.... Further, in several instances, a yellow box containing the word “STAFF”—the so-called “staff badge”—appeared next to the employees’ user names, as it does for all actions taken by an employee on the Website.... Based on this evidence, Plaintiffs argue that the ten employee-uploaded videos may not fairly be characterized as stored at the direction of users but rather must be characterized as stored at the direction of Vimeo through common law agency principles.

In response, Vimeo directs the Court to Capitol Records, Inc. v. MP3tunes..., reconsideration granted on other grounds..., in which Judge Pauley concluded that the employees’ personal use of the defendant’s website could not be the basis of a direct infringement claim against the defendant... In MP3tunes, it was undisputed that executives and employees of the defendant website downloaded and stored music using the website.... Citing testimony that the employees “maintained private accounts and used MP3tunes lockers for their personal benefit,” Judge Pauley denied summary judgment to the plaintiff on its direct infringement claim because “a genuine dispute exist[ed] as to whether any of the [] songs in question were downloaded by employees in the course of their employment.” ...

On balance, it is less clear to the Court than it was to the court in Fung that a user would conclude that the employee-uploader was acting on behalf of the service provider. Reasonable minds could differ, as in MP3tunes, as to the extent to which the videos at issue here were uploaded by Vimeo employees in their personal capacities as opposed to as agents of Vimeo. Accordingly, a triable issue has been raised with respect to whether the employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope of their employment.

This seems somewhat reasonable. It is an unclear issue that could involve further discussion. From all appearances, it seems to me to be more like the MP3tunes situation, but I'm sure the RIAA and its supporters will argue the opposite. We'll see how it shakes out at trial.

The ruling also has a pretty good discussion on the old question of "red flag knowledge." Here, the court is unpersuaded by the labels' argument that everyone should automatically know that these things are infringing:

Plaintiffs claim that Vimeo employees’ interactions with these fifty-five Videos-in-Suit necessitates a determination that Vimeo had actual or red flag knowledge of the videos’ infringing content. The Court disagrees. Despite the fact that these interactions are undisputed and that most, if not all, of the copyrighted songs used in the videos would be characterized by many as popular, and in some cases legendary—indeed, it is difficult to think of a song more iconic than The Beatles’ “All You Need is Love”—the Court is not prepared to hold that this automatically compels the conclusion that the service provider, through its employees, was aware of facts and circumstances that would make it objectively obvious to a reasonable person that those videos were infringing.

That's good. Too many copyright maximalists like to pretend that if there's copyright content there, and an employee is aware of it, that's automatically "red flag" knowledge. The court doesn't deny that there might be red flag knowledge (and even expresses skepticism towards some of Vimeo's arguments), but says that this, too, is an argument to be heard at trial.

The court also rejects the argument of "willful blindness," again suggesting that just because the labels didn't like the way Vimeo acted, that does not equate to willful blindness.

What remains of Plaintiffs’ willful blindness argument amounts to little more than their frustration that Vimeo did not use sophisticated monitoring technology in its possession to seek out and remove instances of infringing content. As noted above, however, [the DMCA] and attendant case law make clear that service providers are under no affirmative duty to seek out infringement.

The court also rejects the idea that Vimeo "induced" users to infringe on copyright, noting (again) that the mere use or even sanctioning of infringement is not enough.

This evidence simply does not rise to the level of that adduced in Grokster—either in quantity or in kind. In Grokster, the record was “replete with evidence” that defendants “clearly voiced the objective that recipients use [their product] to download copyrighted works.” ... The examples supplied by Plaintiffs reflect no such thing. To be sure, some of the videos discussed above created by Vimeo employees (for example, Lodwick’s lip dub) incorporated infringing music, and users’ submissions may have often incorporated the same. But the relevant standard at issue here—inducement by way of the exertion of substantial influence on the activities of users—cannot be met by evidence of stray instances of wrongful conduct by Vimeo employees on the Website and/or a generalized effort to promote videos that incorporate music. This is so particularly in light of the Supreme Court’s acknowledgement in Grokster that courts be “mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential.”

There is one more really bad part of the ruling... and it's saying that there are no DMCA protections on pre-1972 sound recordings. This is an issue we've mentioned a bunch lately, with different courts coming to different determinations. Unfortunately, this time, the court says the DMCA safe harbors don't apply:

The Court shares the view that “it is for Congress, not the courts, to extend the Copyright Act to pre-1972 sound recordings, both with respect to the rights granted under the Act and the limitations on those rights (such as section 512) set forth in the Act.” Copyright Office Report at 132; see also UMG Recordings, Inc., 964 F.Y.S.2d at 112 (it would “be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.”) Accordingly, the Court grants summary judgment to Plaintiffs for all applicable Videos-in-Suit.

And so, this case is far from over. There are a lot of good things in the ruling, but the details at the trial are going to matter quite a bit as well, and the failure to cover pre-1972 recordings will continue to create a chilling effect on user-generated websites which now face some amount of risk for having such songs uploaded.

Filed Under: copyright, dmca, lipdubs, pre-1972 recordings, safe harbors
Companies: vimeo

Bad News: Court Says Cyberlocker & Its Owner Can Be Liable For Copyright Infringement

from the secondary-liability:-watch-out dept

While the full ruling won't be out for a few weeks, a Florida court has made a horrifically dangerous ruling, saying that cyberlocker Hotfile can be liable for copyright infringement. We've been covering the Hotfile case from the beginning, and find this to be fairly surprising. The details of the MPAA's original lawsuit were astoundingly weak, based on bad inferences and innuendo, which would destroy concepts of protection against secondary liability and completely undermine the safe harbors of the DMCA. The fact that the MPAA misrepresented how Hotfile was used only made things worse. On top of that, it sounds like the judge has said that the guy who owned Hotfile, Anton Titov, is also personally liable.

The specific details of the ruling will be important, because it's very important to see on what basis Judge Kathleen Williams found as she did, but the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real. Stupidly, the MPAA is cheering on this decision, despite the fact it will likely create chilling effects that will harm the kind of innovation the movie industry needs the most these days.

I know that some people will, undoubtedly, argue that Hotfile was used for a lot of infringement -- and there's evidence to suggest that's true. But, copyright owners have always had a remedy there: go after the actual infringers. Putting liability on the cyberlocker itself now puts just about any online cloud provider at risk of getting sued. Dropbox, Box.net, Flickr, YouTube, Google and many others need to pay close attention to what comes out of this case, because pinning liability on a third party storage company will make it much more expensive for any such service to be in business. This is sad, and stupidly counterproductive for the MPAA, because what it should be doing these days is embracing services that help fans access the kind of content they want when they want it. Instead, they're actively trying to shut down innovations via copyright law.

I'm sure we'll have a more thorough analysis of the full details of the ruling once they're out.

Filed Under: anton titov, copyright, cyberlocker, dmca, dmca safe harbors, kathleen williams, safe harbors, secondary liability
Companies: hotfile, mpaa

Appeals Court Tells Universal Music: You Lost The Veoh Case, Get Over It

from the moving-on... dept

The Universal Music case against Veoh is quite incredible on many layers. Universal Music sued Veoh, a YouTube-like company, despite the fact that Veoh was quite careful in abiding by the DMCA's safe harbor rules. Universal Music has lost at every single level, though the costs of the lawsuit put Veoh out of business (someone else bought up the domain and continues to run a site, but it's not the original Veoh). Despite losing, and losing badly, Universal Music keeps pumping huge sums of money into the law firms it hired to continually appeal the rulings against it, despite them being overwhelmingly against Universal Music. Back in March, the appeals court, once again sided with Veoh, but Universal Music asked for the court to rehear the case.

The Ninth Circuit appeals court has made it clear it has no interest in rehearing the case:

The panel has voted to deny Appellant's petition for rehearing. Judges Pregerson and Berzon have voted to deny the petition for rehearing en banc and Judge Fisher so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc.

Basically, not a single judge on the court thinks there's any issue here at all. Universal Music lost. It lost big. It lost clearly and with little question to whether or not it should have lost. Not a single judge on the court thought that it's even worth bothering exploring this issue again since the issues and the decision were so clear.

Of course, given that Universal Music's lawyers seem to be running the show, I fully expect them to ask the Supreme Court to review the case as well (rack up those billing hours!). Chances are the Supreme Court will deny cert (what's the issue to review here?), but if they actually take the case, it could lead to a clear decision on how Universal Music's warped interpretation of the DMCA, that it requires filters, is obviously incorrect.

Filed Under: copyright, dmca, safe harbors
Companies: universal music, veoh

RIAA: The Copyright Reform We Need Is To Make Everyone Else Copyright Cops

from the they-just-don't-get-it dept

The RIAA is gearing up for the big copyright reform battle doing the only thing it knows: whining that everyone else won't fix its own broken business model. Despite heavy budget cuts and layoffs, the RIAA hasn't yet realized that singing the same old debunked song isn't a winner. It's claiming that the DMCA's safe harbors are broken and need to be fixed. It's really quite incredible. They talk how they've sent 20 million DMCA takedowns to Google, and then complain that the process isn't working. Seems odd, then, that they would send so many. Perhaps they should have knocked it off earlier, and focused on things like teaching people how to have better business models.

But, that's not how the RIAA functions.

Rather than having a useful employee, like a VP of new business models, the RIAA has a VP of anti-piracy (I actually believe they have a few), and one of them, Brad Buckles, wrote the latest misleading screed against the safe harbors. The short version is basically: everyone else needs to prop up our business models by randomly taking down content that might, possibly be infringing. Of course, this makes no logical sense, no matter how much the RIAA wants to play pretend. Already, we see stories practically every day about how the copyright holders themselves -- including the RIAA -- send bogus DMCA takedowns all the time. And those are the guys who are supposed to know what's infringing.

And yet they magically expect some third party, who has no idea if the content was put up in an authorized manner or not to make that determination for them? Really? Do they not realize (or not care) what a massive chilling effect that would have on innovation? If service providers are required to proactively guess at what is infringing and what's not -- and face liability for guessing wrong -- then the obvious is going to happen: a lot less innovation in any service that includes user generated content. The risk of liability would be way too high. That may not matter to the RIAA, who has never been a fan of the internet, but it sure as hell matters to the public, who has received tremendous value from the internet. I'd also imagine it matters quite a bit to tons of musicians who are not a part of the RIAA machine, who now use the internet to have a better career than they ever had under the old system.

So, here's a suggestion for the RIAA, while they're laying off a bunch of staffers (despite giving boss Cary Sherman a hefty raise to $1.5 million per year). Maybe layoff the "anti-piracy" team -- since clearly that's not working for you -- and hire a "new business model" or "innovation" team, and give them a shot to help your members.

Filed Under: copyright, copyright reform, dmca, notice and takedown, safe harbors
Companies: riaa

YouTube Wins Yet Another Complete Victory Over Viacom; Court Mocks Viacom's Ridiculous Legal Theories

from the winner-and-still-champion dept

A few weeks ago we took a look at the latest filings in the long-running Viacom/YouTube dispute and were somewhat stunned at the ridiculous arguments made by Viacom, suggesting that the burden of proof was on YouTube to prove it did not know the videos on its site infringed on Viacom's copyrights. The idea that copyright law works this way, in which the burden of proof is on the service provider to show a lack of knowledge of infringement, is crazy. Thankfully, the court agreed.

In a ruling released today, the court gave a total victory to Google/YouTube, granting it summary judgment, saying that YouTube was protected from claims of infringement via the DMCA's safe harbors, and mocking Viacom's legal theories at the same time. Might as well jump right in with some quotes, including the money quote that Viacom's legal theory is "extravagant." Elsewhere the judge calls it "ingenious."

Viacom's argument that the volume of material and "the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives" (Viacom Opp. pp. 9-10) combine to deprive YouTube of the statutory safe harbor, is extravagant. If, as plaintiffs assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. 17 U.S.C. § 512(c)(3)(A). The system is entirely workable: in 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day. See 718 F. Supp. 2d 514 at 524.

Thus, the burden of showing that YouTube knew or was aware of the specific infringements of the works in suit cannot be shifted to YouTube to disprove. Congress has determined that the burden of identifying what must be taken down is to be on the copyright owner, a determination which has proven practicable in practice.

This was the crux of Viacom's argument. That because they could show a lot of infringement, and here and there point to some evidence that some people at YouTube might have known of general infringement, then the burden should be on YouTube. But the court clearly calls them on this, noting that's not what the law says, nor does it make sense. Instead, under the law, the burden is on Viacom and that makes sense.

From there, the court cut through the claim of "willful blindness" that Viacom (and some of the folks in our comments) were so fond of. The court's basic response is "huh?" Basically it points out that Viacom's argument makes no sense. It points out that the 2nd Circuit appeals court made it clear that red flag knowledge had to be about specific infringements and Viacom keeps talking about general knowledge. This is, of course, what plenty of us pointed at the time and the court clearly sees through Viacom's wacky argument.

Here, the examples proffered by plaintiffs (to which they claim YouTube was willfully blind) give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them. The specific locations of infringements are not supplied: at most, an area of search is identified, and YouTube is left to find the infringing clip. As stated in UMG Recordings v. Shelter Capital Partners, LLC, No. 10-55732, 2013 WL 1092793, at *12 (9th Cir. Mar. 14, 2013) ("UMG III"),

Although the parties agree, in retrospect, that at times there was infringing material available on Veoh's services, the DMCA recognizes that service providers who do not locate and remove infringing materials they do not specifically know of should not suffer the loss of safe harbor protection.

The Karim memorandum states that infringing clips of some well-known shows "can still be found," but does not identify the specific clips he saw or where he found them. The Wilkens declaration submitted by plaintiffs asserts that there were over 450 such clips on YouTube at the time, and presumably some of them contained the infringing matter seen by Mr. Karim. To find them would require YouTube to locate and review over 450 clips. The DMCA excuses YouTube from doing that search. Under § 512(m), nothing in the applicable section of the DMCA shall be construed to require YouTube's "affirmatively seeking the facts indicating infringing activity."

Mr. Karim's memorandum does not tie his observations to any specific clips. Application of the principle of willful blindness to his memorandum thus does not produce knowledge or awareness of infringement of specific clips-in-suit, out of the 450 available candidates. Nor does any other example tendered by plaintiffs.

It goes on to reject Viacom's theory that YouTube had the "right and ability to control" infringement on YouTube, by pointing out that its failure to monitor is completely allowed under the DMCA, contrary to Viacom's desire to pretend otherwise:

YouTube's decision to restrict its monitoring efforts to certain groups of infringing clips, like its decisions "to restrict access to its proprietary search mechanisms," do not exclude it from the safe harbor, regardless of their motivation.

Further, it points out that the rest of Viacom's arguments just show "the normal functioning of any service provider, and shows neither participation in, nor coercion of, user infringement activity." Basically, Viacom's bizarre attempt at making all service providers liable across the board has failed.

Finally, the court quickly dismisses Viacom's claim that because YouTube did deals to make its videos accessible via mobile phones, that syndication caused YouTube to lose its safe harbor protections. The court notes that this was just about making the videos accessible, not about YouTube selecting videos, but still letting users pick the videos they want to watch, but via their mobile phones. It notes that contrary to losing the safe harbor provisions, this is actually a reason for why the safe harbors are good, because it "serves the purpose" of the DMCA in "providing access to material stored at the direction of users."

Basically, Viacom has wasted an incredible amount of money on a massive lawsuit based on a very, very shaky premise that the court didn't buy the first time around, or the second time around. Of course, now we fully expect Viacom to throw more good money after bad, and keep trying to convince a court that its entirely unique interpretation of the DMCA makes sense.

Filed Under: burden of proof, copyright, dmca, red flag knowledge, safe harbors, youtube
Companies: google, viacom, youtube