Recently in Copyright Category

Market Failure and Piracy

The historical popularity of file sharing owes as much to access as to price. Back around the turn of the century when musical lovers were clamoring for the ability to buy legal downloads, but didn't have a way to do that easier than piracy until Apple opened the iTunes store?

Dan Messer, Not All Bits, Warner Bros. Locking Down Harry Potter and Screwing Themselves "Hey, they tried to give someone, anyone, some money for this product and they were denied a legal avenue to do so at every turn. So, right or wrong, ethical or not, they acted upon the wantingness, the desire, created by Disney, and then removed Disney from the equation. Then they went out and gave that money to someone who would sell them some popcorn to snack on while watching the movie."

All else equal, music, TV and film buyers don't mind spending money on media when they know that it will be convenient and high quality. The hassles and risks of file sharing make sense when the paid alternative is both more difficult and more expensive or simply does not exist at all.

This year, cyclists in New York City are contending with increased scrutiny from police officers, who are attempting to crackdown on any and all infractions of code. Bike Ticketing In New York, Widespread, On the Rise

Eben Weiss, Bicycling Magazine, In Crackdown on Cyclists, History Repeats Itself: "Nevertheless, this perception in New York City of bicycles as dangerous and the people who ride them as bullies has not changed. In an unprecedented investment in cycling infrastructure that gave even Portland an inferiority complex, New York City has added hundreds of miles of bicycle lanes in the past few years. As a result, the number of bicycle commuters has doubled since 2005. So, it seems, has resentment, and people have been blaming bike lanes for everything from harming local retail businesses (uh, it couldn’t have anything to do with that little recession we’re having, could it?) to somehow making the streets more dangerous for children and senior citizens, who would presumably prefer to be mowed down by cars instead of bicycles."

Filmmaker Casey Neistat was ticketed for riding outside of a bicycle lane, and made this amusing video to show how often bike lanes are obstructed:

Also this week, this video highlighting the interactions between cyclists, pedestrians and cars:

3-Way Street from ronconcocacola on Vimeo.



Cyclists in NYC have a reputation for riding aggressively, weaving in and out of traffic, ignoring red lights and riding dangerously and erratically.

In large part, cyclists perpetuate these stereotypes because neither the city's infrastructure nor law enforcement allow cyclists to ride safely while also compling with the law. A bicycle rider is much smaller and slower than the cars, trucks and buses with which he would share the roads, and much faster than – and thus dangerous to – the pedestrians who use the sidewalks and crosswalks. Absent a complete network of dedicated, physically separated, safe bicycle lanes, cyclists need to ride more aggressively in order to attempt to feel safe riding among the much larger and faster vehicular traffic. Riders who started cycling in the city prior to the Sadik-Kahn bike lane bonanza were accustomed to riding aggressively without much regard to the letter of the law, because the infrastructure did not create a respected space for cyclists to behave prudently and responsibly as cyclists. Cyclists riding in traffic lanes were (and still are) treated by motorists as interlopers into their dedicated space. Cyclists riding on the sidewalk in violation of the law were doing so because it could be safer than riding alongside traffic.

In at least two ways, copyright in the digital age also reflects a similar dynamic, with remixers and P2P file sharers acting without strict adherence to the law in order to route around the market and copyright regime knowing how to meet their needs.

During the dawn of the era of digital music, users turned to P2P file sharing when they found it impossible to legitimately buy digital downloads. Before the launch of the iTunes Music Store, 8 years ago, there was no systemic legal way to buy individual songs for a reasonable price. Buyers who were willing to pay $0.99 for a hit single, but not $12 for the album including that single might be priced out of buying the full album. So instead, they would turn to P2P in order to get the one track they wanted.

At the beginning of the P2P era, downloading MP3s over a high-speed university network or internet connection could be faster than ripping the legitimately purchased CD to MP3 on a standard computer of the time. And so many of the early P2P music pirates infringed on copyright law not as a show of protest against an unjust law, but out of a market's failure to offer a product – downloadable digital music – at any price. The original simply offered the best music acquisition experience available at the time.

For a time in the early aughts, the major labels were not only not offering the digital music product that the market sought, but seemed vigorously opposed to offering any service that was both legal and offered any level of convenience to customers. Because the labels were so worried about piracy, they were hesitant to offer convenient digital downloads at reasonable prices without ensuring that those files were locked down with DRM. It seemed like the perception on the label side was the digital downloads = piracy. Only after Apple's iTunes service offered enough DRM to satisfy the labels, but worked seamlessly enough to entice iPod users did we start to see today's market gradually emerge.

In the last 8 years, a vibrant market for digital music and video content emerged to provide a wide selection from a number of retailers in both downloadable sales (iTunes, Amazon) and streaming rentals (Rdio, Rhapsody, MOG, Netflix, Hulu). At the same time, copyright owners went to court to defend their rights against infringers. And sharing music and video illicitly over P2P has lost most of the noble reasons for its use. The vast majority of users on P2P now are doing so out of a conscious preference of piracy over legitimate access. In some cases, P2P helps fans access material when it is first released, rather than waiting for the release window to catch up to their home country. In other cases, it is because piracy provides a better user experience than the legitimate access. But in others, it's simply to avoid having to pay.

The cyclists who started riding aggressively and flaunting rules out of safety will happily follow reasonable laws once the infrastructure is in place to allow them to ride safely, quickly and conveniently throughout the entire city. There are other cyclists however, who choose to flaunt the law, ride aggressively and recklessly, salmoning against traffic as a statement of some kind. They may see themselves as engaging in "bike culture" because they are adopting the styles and norms of aggressive riders for the sake of being aggressive and edgy, rather than out of necessity.

Before the advent of popular legitimate online music services, I worried that the lack of the services would turn young music listeners towards a life of expecting all downloads for free, and not understanding that recording artists might want to make a living from their work. (This attitude persists, but hopefully is not the dominant one amongst today's youth.)

Today, New York City and its urban cyclists face a similar crossroads. Will the crackdown on traffic code violations come along with continuing progress towards a complete, safe, viable cycling infrastructure? Will cyclists have the space and respect that we need to be one of three coequal classes of users of the public space along with pedestrians and motorists? If so, then I would expect reckless cycling to decrease at the same rate that infrastructure makes compliance with all regulations safer and more efficient than recklessness.

If, however, the vociferous bike lane opponents get their wishes and start to rip out the nascent bike infrastructure, this will become a fruitless crackdown that might only serve to delegitimize bicycling as a method of transportation in New York City. (Fortunately for cycling advocates, this week has seemed to establish that Anthony Weiner is not likely to succeed Michael Bloomberg as the next mayor of New York.)

Cyclists and policymakers should learn from the music industry: the violations of law occur because compliance is largely impossible. Legal opportunities to purchase usable digital music downloads have likely had a far larger impact on P2P usage than copyright infringement suits filed against file sharers. A cycling infrastructure where bike lanes aren't systemically blocked by parking, standing and turning vehicles and where lanes don't end abruptly to force cyclists into traffic will be more effective at encouraging safe, respectful cycling than a crackdown. Preventing encroachments and respecting the cyclists' space to be able to ride safely is the only way to encourage cyclists to respect other users of the city's public space.

Not all is fair in bo.lt and links

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Brian Morissey, Digidaily, Publishing in the Remix Era "The latest exhibit is page-sharing service Bo.lt. The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. Bo.lt lets anyone dump a URL into the platform, and then start editing a web page for sharing. The result: the New York Times story on President Obama’s Medicare panel? Change the headline. Better yet, take out the comments. Also, let’s strip out the related. Now it’s ready for sharing to the world -- on a user's own Bo.lt URL. Oh, and there’s no easy way for The New York Times to block its content from Bo.lt."

Or better yet, take a look at the same article, shared on Bo.lt by David Berkowitz, More BS from Digiday: Publishing in the Remix Era.

Now go back to the original. And the bo.lt link.

Who expects this to last long in its present form?

Bo.lt appears to be copying the entire web page, reproducing the entire work, presenting it in its original form and letting users modify the content, creating a derivative work. Can anyone make a non-frivolous argument that this specific behavior is protected by fair use?

The purpose and character of the use is commercial. Even though users may have an academic or creative purpose for using the service to transform works, on a large scale basis, the service is backed by venture capital, so it would seem to be meant to make money without any specific pedagogical or analytical goals.

The nature of the works copied will be articles by major newspapers, magazines and literary sites. (Who else would we expect to bring any eventual litigation?)

The amount of the work copied is generally the entire work, which isn't always a barrier to a finding of fair use, but not particularly favorable for Bo.lt.

Is the work transformative? There is an interesting application for linking and commenting that might draw the ire of web publishers that should be protected by fair use, but Bo.lt is probably insufficiently transformative. Yes, it allows its users to change the text of pages they share, but it doesn't recontextualize the copyrighted material in any significant way. The pages capture the entire page source site, rather than just article text to put into a new context. The annotations are integrated with the text to change the text into a derivative work, rather than to stand alone in any way as annotations.

And even if this kind of reproduction was judged to be fair use, Bo.lt is likely to run head-on into trademark infringement. Since the page reproduces logos and branding completely with only subtle hints to the user-generated changes, readers are likely to be confused about Since many Internet users are now used to link shorteners, particularly for Twitter users, there can be some confusion as far as what is a canonical link and what is reframing.

SharedCopy is a more interesting service, because it allows its users to annotate web pages with more transparency. Even though SharedCopy is copying entire web pages, it is distinguishing the annotations from the original author's text. However, it is copying entire pages and republishing articles outside of login/paywalls for users to share. Is it necessary for SharedCopy to copy the entire web page to allow users to link, annotate and comment on pages?

Flipboard and Readability are also doing interesting things with contextualizing and reformatting full text of web pages, but generally more for private personal use, so there is little republishing. And Readability and Flipboard are both attempting to work with publishers to license uses to provide the best experience for their users.

Surprise: Authors Like Copyright

The Authors Guild, via Scott Turow, Paul Aiken and James Shapiro, published an Op-Ed in the New York Times today wondering if Shakespeare would have been able to succeed as a playwright and author without the ability to earn money from his works: Would the Bard Have Survived the Web? "At day’s end, actors and theater owners smashed open the earthenware moneyboxes and divided the daily take. From those proceeds dramatists were paid to write new plays. For the first time ever, it was possible to earn a living writing for the public. Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft."

Shakespeare created his works in late sixteenth and early seventeenth centuries, a century before the Statute of Anne and the first copyright. So copyright wasn't the motivator for Shakespeare to write, but the ability for the author and the performers to make a living from their work.

Julie Hollar, writing for FAIR notes that Shakespeare's work may not have even been possible due to copyright: Would the Bard Have Survived U.S. Copyright Law? "Shakespeare's classics Romeo and Juliet, Othello, As You Like It and Measure for Measure, among others, were based on works of fiction published in the decades before Shakespeare's career. They thus would have been illegal under current U.S. copyright law, which keeps works out of the public domain for 70 years after the death of the author, or a total of 95 years for works for hire. Copyright protection for decades after Shakespeare's death would have had no impact on his ability to produce work and limited impact on his incentive to do so--while the inability to retell contemporary stories would have directly restricted his creativity."

But if Shakespeare published a full century before copyright and yet somehow managed to have sufficient incentive to create, doesn't that mean that copyright is far from the only incentive to create?

In the centuries since the Statute of Anne, copyrights now belong more to entities other than individual authors. Individual copyrights are increasingly packaged as assets to generate profits, often for entities who purchased the copyright from the author. The question isn't not: how to we manage to ensure that copyright owners maximize their profits? Rather, shouldn't the Authors' Guild be asking, how do we create incentives for authors? How do we use copyright to maximize value to our Copyright has managed to do this, but is a consistent movement towards stronger copyrights a movement towards creating a vibrant culture?

Studios Sue Another DVD 'Cleaning' Service

Eriq Gardner, THR, Esq, Studios Sue to Stop 'Family-Friendly' DVD Service - THR, Esq.: "A coalition of major studios including Paramount, Warner Bros., MGM, Disney, Universal and Fox has filed a lawsuit against a defendant who has taken movies such as Iron Man 2, The Hurt Locker, Prince of Persia and Date Night, altered them to be free of objectionable content, and is distributing them to consumers as "family-friendly." The lawsuit was filed on Thursday in Arizona District Court against Family Edited DVDS, Inc. and its leader, John Webster."

Paramount Pictures Corp. v. Family Edited DVDs (Complaint)

In 2006, Clean Flicks of Colorado v. Soderbergh ruled on a similar service, "Creating and distributing edited versions of films to 'sanitize' the films to make them more 'family-friendly' constitutes copyright infringement as a matter of law under the §106(1) right of reproduction and 106(3) right of distribution."

In response, Congress passed the Family Entertainment and Copyright Act of 2005, now 17 USC §110(11)

(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.

This allows manufacturers of DVD players that are designed to avoid possibly offensive content avoid liability from copyright owners whose works are played on those players. But it does not change the rights that Clean Filcks was found to be infringing.

What what?

Eriq Gardner, THR, Esq: 'South Park' Sued for Stealing from YouTube "On Friday, Brownmark Films filed a copyright infringement lawsuit in U.S. DIstrict Court in Wisconsin, alleging that the infringement is 'willful, intentional, and purposeful, in disregard of and indifferent to the rights of Brownmark.'"

Complaint for Copyright Infringement in Brownmark Films, LLC v. Paramount Pictures Corporation et al

Here's the original video:

And South Park's take:

Brownmark Films: Brownmark vs Viacom et al. "We understand that fair use is an important legal concept, but the rules need to be more clear. Viacom’s position on fair use is contradictory: whenever they take copyrighted works from someone else, it is fair use; whenever someone takes copyrighted work from them, it’s copyright infringement. We don’t think Viacom should get to operate with a double-standard like that."

COICA

In the lame duck session, Congress may take further action on S.3804 Combating Online Infringement and Counterfeits Act, a bill that would give the federal government broad powers over internet domain names and blocking internet traffic in order to prevent the infringement of copyrighted works.

While the US government is opposed to other countries regulating speech online, Congress is willing to consider a measure that would allow the US to do the same.

Juliana Gruenwald, Tech Daily Dose, Senate Judiciary Backs Online Piracy Bill: "The Senate Judiciary Committee approved legislation Thursday aimed at cracking down on online piracy and counterfeiting with a particular emphasis on rogue foreign websites."

Peter Eckersley, Electronic Frontier Foundation: The Case Against COICA, "COICA gives the government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet if infringement, or even links to infringement, are deemed to be 'central' to the purpose of the site. Rather than just targeting files that actually infringe copyright law, COICA's 'nuclear-option' design has the government blacklisting entire sites out of the domain name system -- a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech."

Center for Democracy and Technology The Dangers Of S. 3804: Domain Name Seizures And Blocking Pose Threats To Free Expression, Global Internet Freedom, And The Internet’s Open Architecture "Copyright infringement is a serious problem, and CDT harbors no sympathy for websites whose primary purpose is to enable widespread violation of copyright and other intellectual property rights. But methods embraced by S. 3804, the “Combating Online Infringement and Counterfeits Act,” would mark a sea change in U.S. policy towards the Internet. In particular, U.S. government action to seize domain names and to direct Internet Service Providers (ISPs) to block government-blacklisted sites would set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internetʼs open and global architecture."

Law Professors’ Letter in Opposition to S. 3804 "The Senate Judiciary Committee is poised to consider a bill that, if enacted, will have dangerous consequences for free expression online and the integrity of the Internet's domain name system, and will undermine United States foreign policy and strong support of Internet freedom abroad."

An Open Letter From Internet Engineers to the Senate Judiciary Committee: "We are writing to oppose the Committee's proposed new Internet censorship and copyright bill. If enacted, this legislation will risk fragmenting the Internet's global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be circumvented by deliberate infringers while hampering innocent parties' ability to communicate."

Does the web devalue writing?

Monica Gaudio recently had an article published in Cooks Source magazine. This came as a surprise to her, since the magazine simply lifted it off the web, did some cursory copy editing and published it without asking permission. Copyright Infringement and Me. Gaudio is certainly not the first writer to have her work infringed, and Cooks Source is certainly not the first magazine to do so. What's made this story take off is the condescending and blatantly wrong response from Cooks Source's editor:

"I do know about copyright laws.… the web is considered 'public domain' and you should be happy we just didn't 'lift' your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me!"

Copyright attaches to works when they are fixed, such as when they are posted to a web page. Just because a work is posted on the freely accessible web doesn't mean that the work itself is free to exploit. Remember: willful copyright infringement of works registered with the Copyright Office is subject to statutory damages of up to $150,000.

While traditional publishing may turn to the internet to avoid having to pay or talk to freelancers, it also has given freelance journalists the opportunity to write and edit search engine bait for tiny amounts of money. Jessanne Collins, The Awl, My Summer on the Content Farm

"If you’ve been keeping up with media musings on the Walmartification of service journalism by Demand—which runs sites like eHow and LiveStrong—and the other so-called “content farms,” like Yahoo’s Associated Content and AOL’s Seed, you know that this company's business strategy is regarded as “audacious and controversial”; that their content is algorithmically designed be narrow in focus and broad in reach in order to maximize ad potential, and that it’s also generally kind of "crappy"; that by paying insulting rates to the freelancers who churn out this copy, they devalue the work of people who attempt to write for a living; and that they might not be as profitable as they like to say they are."

While not as exciting as the new phone books, the Copyright Office released its latest rulemaking on exemptions to the DMCA prohibition on circumventing technological protection measures of copyrighted works: Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. The current exemptions include:

  1. Short clips from DVD's "when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment" to meet the goals of fair use for:
    1. Educational uses by college and university professors and by college and university film and media studies students;
    2. Documentary filmmaking;
    3. Noncommercial videos.

  2. Programs to enable phone handsets to execute software applications (phone "jailbreaking.")

  3. Computer programs that enable used wireless telephone handsets to connect to a wireless telecommunications network with the permission of the network owner

  4. Technological protection methods on computer-based video games, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if the information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and the information derived from the testing is used in a manner that does not facilitate copyright infringement or a violation of applicable law.

  5. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

  6. Literary works distributed in ebook format when all existing ebook editions of the work contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Links
EFF: EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers "The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities."

Nate Anderson, Ars Technica, Apple loses big in DRM ruling: jailbreaks are "fair use" "This time, the Library went (comparatively) nuts, allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be 'fair use,' and letting consumers crack their legally purchased e-books in order to have them read aloud by computers."

Jon Healey, LA Times, More legal reasons to circumvent electronic locks: "The biggest beneficiaries may be documentary filmmakers and iPhone software developers. The former gained permission to circumvent the Content Scramble System software on DVDs to copy short portions of copyrighted motion pictures for non-infringing uses. In an interesting twist, the copyright office extended the exemption to anyone making a documentary, not just members of a recognized group of filmmaking professionals."

MGE v. GE
In other DMCA Anti-Circumvention news, the Fifth Circuit ruled last week that in order to deserve protection under the anti-circumvention provisions, the technological prevention measures need to protect an action that copyright law reserves for the copyright owner. MGE UPS Systems Inc. v. GE (5th Cir. Jul. 20, 2010)

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners… Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.

GE was using a version of MGE's systems that were modified to work without a copy protection dongle, but GE was not otherwise infringing on any of MGE's copyrights. The circumvention was done to use the MGE products that GE purchased, but not to distribute or perform copies of MGE's copyrighted works.

Nilay Patel, Engadget, Did the Fifth Circuit just make breaking DRM legal? Not quite.

Sheet Music Sharing

While most of the discussion of online music sharing has focused on P2P sharing of MP3 encodings of sound recordings, there is also a scene sharing copies of copyrighted sheet music. Broadway composer Jason Robert Brown decided to take a stand by registering for one of the most popular sheet music swapping sites and asking people trading copies of his sheet music online to stop, with casual, friendly, personal e-mails. He had an exchange with one teenager who wants copies of Brown's music without having the means to buy it online: Fighting With Teenagers: A Copyright Story

On Jun 28, 2010, at 4:39 PM, Brenna wrote:

Alright, "Mr. Brown" I have a problem and that problem is your fault. I need the sheet music to "I'd Give It All For You" but thanks to your little stunt, I can't get it. And I cannot just go to the store and buy it. My parents don't support my theatre all that much and they won't buy it for me. And I need it pronto. If you're actually Jason Robert Brown, what can you do to help me with my situation?

On Jun 28, 2010, at 7:43 pm, Jason Robert Brown wrote:

Well, that's a stupid question, Brenna. If you "needed" to go see Wicked tonight, you'd need to pay the $140 to do it or you just wouldn't be able to go. And if you couldn't go, you'd have to go do something else. Likewise, you should pay for things that other people create, or you should content yourself with the free and legal options available to you.

The sheet music costs $3.99, you can download it in one minute, and you're doing the legal and correct thing. That's what I can do to help you.



The entire exchange is interesting.

Here is an example of the exact type of creator that copyright law should be protecting -- a younger composer still creating works. By having income generated by his copyrighted works, through the sale of sheet music, licensing performances and recordings, it encourages Brown to continue composing and creating more, since he can focus on creating, rather than a day job.

Reposting copyrighted sheet music online doesn't fall into a copyright grey area, it's simple straightforward infringement.

Is this a generational divide? As the first generation to grow up with the internet, are today's teenagers just used to taking information freely off of the internet?

David Pogue shares a letter from MIT Media Lab's Michael Hawley, who has compliled 15 gigabytes worth of scans of scores. Hawley writes, "I play the piano. Over the years, I have collected 15,000 piano scores in PDF form, covering about 400 years of classical keyboard works. It’s like lint in the drier of the Internet. Much of it is not available anywhere for purchase, or even findable in libraries for circulation. Max Reger’s arrangement for two pianos of Wagner’s overture, for instance? Well, the Max Reger Institute in Karlsruhe, Germany has a copy…"

Assuming that most of these are old scores, this is an entirely different issue. It is not piracy or copyright infringement. If these scores are in the public domain, there's no copyright infringement to scan and publish them online. If students need access to scores, an internet archive of public domain scores are all perfectly legal to host and publish.

Of course, some of these scores may be of works that are out of print, but still protected by copyright. In that case, it's an orphan works issue, which gets into the more interesting gray areas of copyright law.

And finally, there's the issue of transcriptions of songs, which we last discussed in 2006 with relation to guitar tabs: Everything Old is New Again, in Bb.

In granting summary judgment for YouTube in Viacom v. YouTube, Judge Louis Stanton found that YouTube complied with the notice and takedown requirements set out in the DMCA §512(c) Safe Harbor provision. By promptly taking down infringing works upon notice by the copyright owners, YouTube acted as service provider is required to in order to qualify for §512(c) safe harbor protection.

A general knowledge that users may be using the site to upload copyrighted material does not itself lead to liability under the safe harbor. "General knowledge that infringement is 'ubiquitous' does not impose a duty on the service provider to monitor or search its service for infringements." After all, how is a host supposed to affirmatively distinguish 3rd party works uploaded with consent from ones uploaded as infringements or others uploaded as fair use without notice from the copyright owner?

The ruling distinguishes YouTube from P2P services like Grokster and Limewire: YouTube was found to be prompt at complying with DMCA notices by promptly taking down infringing works.

Links

Kent Walker, Vice President and General Counsel, Google, YouTube Blog: YouTube wins case against Viacom: "This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world."

Eric Goldman, Technology & Marketing Law Blog: YouTube Gets Decisive Win in Viacom/FAPL Case: "Now, the case is also noteworthy because it hands YouTube a clean and decisive win on the DMCA 512(c) safe harbor. The ruling basically says that the current industry standard practices of notice-and-takedown for user-caused copyright infringement satisfies the safe harbor. Although this seems like an uncontroversial result when stated like that, the reality is that copyright owners have repeatedly angled to get a better deal than Congress gave them in 512. This case will squelch many of those copyright owner requests to force service providers to go beyond current industry-standard practices. Of course, we have to see how the opinion fares on appeal."

Susan Crawford, The Congressional deal holds: "News today that Judge Stanton (SDNY) has granted YouTube’s motion for summary judgment in Viacom v. YouTube should not be all that surprising.  In the DMCA, the burden of identifying infringing files was clearly placed on the copyright owner in exchange for a commitment by platform providers to take materials down once they received notice.  That was the deal.  If those platform providers wanted to stay like little boats safely inside the harbor of protection from liability, they had to take files down.  But they didn’t have to affirmatively hunt for infringing items."

Randy Picker, Madisonian.net, Viacom v. YouTube: When Is It Storage? When Is It a Public Performance?: "The issue in the case focuses on the scope of the Digital Millennium Copyright Act’s safe harbor for online service providers set forth in section 512 of the copyright statute. Section 512 is pretty chunky but most of the court’s analysis focuses on section 512(c). That subsection insulates service providers from liability ‘for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider’ if the service provider can meet a three-part standard set forth in that subsection."

Evan Brown, Internet Cases, YouTube victorious in copyright case brought by Viacom: "Simply stated, the DMCA protects online service providers from liability for copyright infringement arising from content uploaded by end users if a number of conditions are met. Among those conditions are that the service provider ‘not have actual knowledge that the material or an activity using the material on the system or network is infringing,’ or in the absence of such actual knowledge, ‘is not aware of facts or circumstances from which infringing activity is apparent.’"

David Kravets, Wired Google Wins Viacom Copyright Lawsuit, "'Today’s decision isn’t just about YouTube,' said Center for Democracy & Technology lawyer David Sohn. 'Without this decision, user generated content would dry up and the internet would cease to be a participatory medium.'"

James Poniewozik, Time Tuned In, YouTube vs. Viacom: Everybody Wins?: "TV networks discovered that the best response to people posting video online was not lawsuits, but providing what their customers obviously wanted, and providing it better. They may not have solved the problem of monetizing online video, though they're getting closer, but what they're doing now beats playing whack-a-mole with uploaders."

Farhad Majoo, Slate, The court was right to side with YouTube over Viacom: "Stanton's ruling resolves a long-standing argument between Web companies and entertainment companies on the question of how to police the Web. The debate boils down to this: Web companies want most content that people post online to be presumed innocent; if a copyright owner comes along and says that a certain video is illegal, then a Web site must take it down, but otherwise it stays up. Entertainment companies have been pushing courts to impose the opposite standard: Much of what people post online ought to be considered infringing, they argue, and Web companies should take steps to prove that the content is legitimate before they let it stay online."

Miguel Helft, The New York Times, Judge Sides With Google in Viacom Suit Over Videos: "The ruling in the closely watched case could have major implications for the scores of Internet sites, like YouTube and Facebook, that are largely built with content uploaded by their users."

The Daily Show's Demetri Martin reports on the filing in 2007.

6/27/10: Ben Sheffner, Copyrights and Campaigns, Viacom v. YouTube: A disappointing decision, but how important? "Put aside, for a moment, whatever you may think of Judge Stanton's ultimate holding absolving YouTube of copyright infringement. Purely as a matter of judicial crafting and analysis, I found the court's order to be extremely cursory. While I certainly don't equate quality with quantity, this opinion was just too damn short to do justice to the complex, heavily-litigated issues in the case."

Teaching Copyright

According to the program's web site, Music Rules is "a free educational program designed to encourage respect for intellectual property and responsible use of the Internet among students in grades 3-8."

At Ars Technica, Nate Anderson takes a look at the curriculum, which happens to be sponsored by the RIAA, Back to school with RIAA-funded copyright curriculum: "If this sounds more like 'propaganda' than 'education,' that's probably because Big Content funds such educational initiatives to decrease what it variously refers to in these curricula as 'songlifting,' 'bootlegging,' and 'piracy."

I tend to think that copyright basics are part of the discussion about information literacy, plagarism and general internet skills that should be taught as part of teaching in the digital age, as copyright is not just recordings, but also text, images and movies.