Decoding the DMCA Safe Harbors

January 27, 2009

I have just finished writing a draft of an essay titled “Decoding the DMCA Safe Harbors.

The Essay analyzes some of the key uncertainties about the DMCA safe harbors that may figure into the copyright lawsuits against YouTube.

The Abstract:

The DMCA is a decade old, which, in Internet time, may well be closer to a century. Although the DMCA safe harbors have helped to foster tremendous growth in web applications in our Web 2.0 world, several very basic aspects of the DMCA safe harbors remain uncertain. These uncertainties, along with the relative lack of litigation over the DMCA in the past ten years, have threatened to undermine the whole purpose of the DMCA safe harbors by failing to inform the public and technology companies of what steps they need to undertake to fall within the safe harbors. In several high profile cases against MySpace, YouTube, and other Internet sites, the clarification of the DMCA safe harbors could prove to be just as important to the Internet as their enactment in 1998. This Essay has attempted to clear up two of the biggest uncertainties regarding the DMCA’s relationship to vicarious liability, and the so-called “red flags” theory of knowledge on the part of the Internet service provider. Specifically, under a proper interpretation of the DMCA, courts should (i) reject the “loophole” theory that posits that the DMCA safe harbors provide no immunity from vicarious liability at all, and (ii) require a high burden for proving a “red flags” theory by requiring knowledge of facts that show specific and “obvious” or “blatant” infringement. This Essay offers five principles for courts and Congress to consider in applying or amending the DMCA safe harbors in the future. The DMCA safe harbors should be made truly “safe” harbors, in a way that encourages greater investment in and the development of speech technologies on the Internet, all while encouraging copyright holders to share the burden of reducing infringement by utilizing the DMCA notice and take-down procedure.

You can download a copy from SSRN by clicking on this link and clicking from there the “Download” button.

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MIT Free Culture’s “YouTomb” website — tracking DMCA notices

June 3, 2008

News: One of my students showed me this nifty website founded by some bright kids at MIT.  The group is called MIT Free Culture — I take it inspired by Larry Lessig — and it tracks 230,348 videos on YouTube to see how many are removed for alleged copyright violations.  So far, 4,948 such videos removed from YouTube, presumably based on DMCA notices.

Analysis:  These are interesting numbers. Of course, we don’t know how many of these copyright claims were legitimate.  And we don’t know how MIT Free Culture chose its sample.  So, putting aside all those variables, the number of DMCA notices seem rather low — by my math, a little over 2% of the total videos in the sample.  So that suggests that a lot of the content on YouTube is not infringing or copyright holders don’t mind.


Some copyright lawsuits v. YouTube disappear

February 3, 2008

News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.

Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.

One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?

Here’s an update on all the cases.

(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck Richard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)

(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)

(4) VOLUNTARILY DISMISSED: David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)

(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)

(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.


Video of the week: Perez Hilton kicked off YouTube

December 22, 2007

Don’t worry, Perez wasn’t booted for long.  He’s back up.


Barack Obama uses Saturday Night Live clip on YouTube, after NBC took it down

November 6, 2007

News: The Barack Obama campaign posted a clip from this weekend’s Saturday Night Live featuring Barack Obama, in a skit making fun of Hillary Clinton and the other Democratic candidates. Newteevee reports that NBC had previously sent YouTube a notice to remove a different copy of the video. But the Obama campaign posted another one — although it’s not clear if with permission from NBC.

Analysis: I think the copyright issue is purely academic at this point. For PR reasons, NBC won’t be going after the Obama campaign for video of Barack Obama himself.


Prince takes on YouTube for copyright infringement

September 13, 2007

News:  Prince has hired the service Web Sheriff to patrol YouTube for unauthorized videos of his music and concerts.  So far, reportedly the Web Sheriff has asked YouTube to remove 1,000 unauthorized clips.  John Giacobbi, managing director of Web Sheriff, says, “At the end of the day, if you take copyrighted music and film off YouTube, most of its business would be gone.”  (More)

Analysis:  I hate to say it (because I used to be a big fan of Prince) but Prince is washed up.  The worst concert I went to last year was Prince in a hotel bar in Las Vegas.  The performer was two hours late (apparently, that’s his MO) and then performed songs that were unrecognizable to most.  You had to pay extra for seats, so most people had to stand or sit on the floor for two hours or more.  I would have had no problem if the show times were accurately reflected on the tickets, but the promoters of the show obviously must have known that it would lose a lot of customers if the tickets said “Prince, 12:30 a.m. to 3 a.m.”   


Viacom admits mistaken DMCA notice after EFF gets involved

September 13, 2007

News: I reported here a couple weeks ago about the questionable DMCA notice that Viacom (MTV) sent YouTube to take down the short video below posted by Chris Knight. MTV had taken footage from Knight’s YouTube video and played it on the MTV show, “Web 2.0 junk.” Knight found out about his video making it on MTV, so he posted the short clip of his video as shown on MTV. The only problem — MTV complained to YouTube that it was copyright infringement — even though Knight’s own video really was what the content was all about.

Well, now finally sanity has been restored. Viacom has backed down and admitted (at least internally) its own mistake. Chris Knight reports on his blog that YouTube has restored his video, after intervention from EFF’s Fred Von Lohmann. Knight is also quick to write that he has no hard feelings with Viacom and asks that his readers not have any, either.

Analysis: My guess is that maybe MTV didn’t even know Chris Knight was the one posting on YouTube the clip from MTV showing Knight’s own video. It’s good that MTV/Viacom came to their senses and realized that they would be on the losing end if this ever went to court, especially after EFF got involved.