National Library Policy

Should the US have a national library policy? In The Atlantic, David Rothman argues for the development of a national digital library: Why We Can’t Afford Not to Create a Well-Stocked National Digital Library System, “Old-fashioned literacy, in fact, rather than e-book standards, should be the foremost argument for a national digital library system–as a way to expand the number and variety of books for average Americans, especially students. Without basic skills, young people will not be fit for many demanding blue-collar jobs, much less for Ph.D.-level work, and economic growth will suffer.”
At the very least, some kind of library lending standard that will allow libraries to standardize on a format for storage and inter-library loans as well as allowing device manufacturers to have a standard to display could be excellent for readers.

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.

Peering into the Pipes

Cecilia Kang, The Washington Post: Level 3 Communications calls Comcast fees for Netflix feeds unfair: “An online networking company that carries video feeds for Netflix has accused Comcast of demanding unfair fees to provide that video to home subscribers, raising questions about the cable giant’s power to control consumers’ access to the Internet.”
Brian Stelter, New York Times, Media Decoder: Netflix Partner Says Comcast Fee ‘Threatens’ Open Internet: “Those issues cut to the heart of Comcast%u2019s imminent acquisition of NBC Universal, which is in the final stages of review by the F.C.C. and the Justice Department. The F.C.C. is considering attaching a condition to the merger that would aim to keep Comcast%u2019s Internet network open to competitors, according to public filings this month.”
Jessica E. Vascellaro, Wall Street Journal, Internet Giants Spar Over Fees: “The dispute fans the flames of the so-called net neutrality debate over how to handle Internet traffic. Federal regulators, who have yet to adopt rules that require Internet service providers to treat similar types of traffic equally, are set to decide this week whether to vote soon on proposed new guidelines. Consumers are caught in the middle. Comcast argued that Level 3 wants to pass the costs to Comcast and its customers. If Level 3 bears the costs, they will eventually fall to users of services like Netflix, according to a person familiar with Level 3’s thinking.”
Without knowing the specific details of the peering agreements between Comcast and Level 3, it’s difficult to say whether this is simply a business dispute over who pays for more bandwidth between Comcast and Level 3 or if it is in fact about charging a competitor more money to send video streaming service into Comcast’s network.
If this is about blocking or impeding Comcast subscribers’ access to the Netflix streaming service, while making it easy to access Comcast’s or NBC’s competitive services for broadband, that’s a prime example of why, in the absence of a truly competitive broadband internet access market, network neutrality regulations are important. If a customer who lives in Comcast’s service area wants to get broadband and also subscribe to Netflix, they may not have any other choice but to use Comcast’s internet service for that access.
Susan Crawford, Bad Timing: Comcast, Netflix, NN, Cable Modems, and NBCU: “The takeaway from today:  No market forces are constraining Comcast – or any of the other major cable distributors, none of which compete with each other.  How will consumers and innovation be protected from their machinations?  The FCC is currently facing two defining moments in US telecommunications policy, and it’s unclear what the Commission is going to do in either case.  Will the FCC act to relabel high-speed Internet transmission services, reversing the radical Bush-era deregulatory turn? Will the FCC block the Comcast/NBCU merger?  Can we expect that anything will happen (at all) to ensure that local monopoly control over communications transport isn’t leveraged into adjacent markets for devices and content?”
Kyle VanHemert, Gizmodo, Comcast Is Bullying Netflix Partners Into Paying a Toll to Deliver Streaming Video: “This is presumably the first volley in what will be a long battle between companies like Netflix and broadband providers, nearly all of whom have their own video on demand services to peddle. And this type of thing is precisely the reason that net neutrality—ensuring that internet providers don’t discriminate in how they deliver their content—has been and will continue to be such a big deal going forward. When service providers strong arm comparatively little guys like Netflix (and the partners upon whom Netflix relies, like Level 3) into paying higher fees, that turbulence eventually shakes down to the customer, either in the form of higher prices or interrupted service.”

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.”

The New DMCA Anti-Circumvention Exemptions are here!

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.

Second Circuit: Indecency Regulations Unconstitutionally Chill Protected Speech

Previously, the Second Circuit and Supreme Court disagreed on whether the FCC Indecency regulations were arbitrary and capricious (the Second Circuit finding that they were adopted arbitrarily and capriciously and the Supreme Court overturning and ruling that the Commission ruled on a rational basis to extend indecency enforcement.) In its first pass at this case, the Second Circuit avoided ruling on whether the FCC indecency regulations violated the First Amendment because the Commission failed to satisfy the APA’s prohibition on arbitrary and capricious regulations.
Today’s ruling goes to the core matter: whether the FCC’s indecency regulations are compatible with the First Amendment. In Fox Television Stations v. Federal Communications Comm., the Second Circuit Court of Appeals ruled that the FCC indecency regulations violate the First Amendment because they are unconstitutionally vague, creating a “chilling effect that goes far beyond the fleeting expletives at issue here.”
Although the Supreme Court found broadcast indecency regulation Constitutionally permissible, this court notes the vast change in the media landscape and technological empowerment that makes broadcast less particularly pervasive than it was in 1978. “The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control.”
Where individuals have the option to block content or channels, as on cable television, the First Amendment does not support bans on indecency that are as large. In US v. Playboy, the Supreme Court found that a technology that could block access to channels on a house-by-house basis made a content-based speech restriction unconstitutional.
The court notes that most modern televisions and DTV converter boxes that allow older TV sets to pick up today’s broadcast television signals are equipped with the V-chip, that allows individual television owners to block potentially offensive content from entering their homes. (Previously: Are Indecency Regulations Obsolete?

There is considerable disagreement among the parties, however, as to what framework Pacifica established. The FCC interprets Pacifica as permitting it to exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit. The Networks, on the other hand, view Pacifica as establishing the limit of the FCC’s authority. In other words, they believe that only when indecent speech rises to the level of “verbal shock treatment,” exemplified by the Carlin monologue, can the FCC impose a civil forfeiture. Because Pacifica was an intentionally narrow opinion, it does not provide us with a clear answer to this question. Fortunately, we do not need to wade into the brambles in an attempt to answer it ourselves. For we conclude that, regardless of where the outer limit of the FCC’s authority lies, the FCC’s indecency policy is unconstitutional because it is impermissibly vague.

Vague rules for what constitutes impermissible indecency has a chilling effect on speech. To the extent that restrictions on speech are Constitutional, they must be specific and clear to avoid having a chilling effect on speakers. The prohibition on vague regulations (the vagueness doctrine) serves several important objectives in the First Amendment context:

  • First, the doctrine is based on the principle of fair notice.
  • Second, the vagueness doctrine is based ‘on the need to eliminate the impermissible risk of discriminatory enforcement.’ Specificity, on the other hand, guards against subjectivity and discriminatory enforcement.
  • Although the Commission sought to give broadcasters guidance in its 2001 document, Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464, the court finds that the Commission’s policy is overly vague, especially after the changes to the fleeting expletive rule.

    “The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.
    “The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.
    “The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The “artistic necessity” and “bona fide news” exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently.”

    Because indecency seems to be a case-by-case judgment (where the Commission knows it when it sees it), the court worries that the FCC could apply discriminatory enforcement to chill speech from particular speakers or particular types of speech.

    “We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in“The Blues.” Fox, 489 F.3d at 463. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience.”

    This has a chilling effect on speech.

    “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose. Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.
    “During the previous proceedings before this Court, amicus curiae gave the example of a local station in Vermont that refused to air a political debate because one of the local politicians involved had previously used expletives on air. The record contains other examples of local stations that have forgone live programming in order to avoid fines. For instance, Phoenix TV stations dropped live coverage of a memorial service for Pat Tillman, the former football star killed in Afghanistan, because of language used by Tilliman’s family members to express their grief. A station in Moosic, Pennsylvania submitted an affidavit stating that in the wake of the FCC’s new policy, it had decided to no longer provide live, direct- to-air coverage of news events “unless they affect matters of public safety or convenience.” If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.
    “As these examples illustrate, the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

    And while solidly striking the current indecency regulations as unconstitutional, the court leaves the possibility that the Commission could come up with indecency enforcement regulations that would be constitutional (after all, the Second Circuit can’t overturn Pacifica.)

    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.

    YouTube finds shelter in the DMCA §512(c) Safe Harbor

    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.”