A Copyfighter’s Musings

Reps. Rick Boucher and John Doolittle’s FAIR USE Act [PDF] would remove some of the entertainment industry’s most draconian anti-innovation weapons and chip away at the Digital Millennium Copyright Act’s (DMCA) broad restrictions on fair use. Take action now and tell Congress to help restore balance in copyright now.

Technology companies play a game of Russian roulette whenever they create products with both infringing and non-infringing uses. Current “secondary liability” standards don’t provide enough certainty, and if innovators guess wrong, they can be hit with statutory damages as high as $30,000 per work infringed. When it comes to mass-market products like the iPod or TiVo, damages could run into the trillions of dollars — more than enough to bankrupt anyone from the smallest start-ups to the biggest companies. Unlike in other areas, the private assets of corporate officers, directors and investors are not shielded from liability in copyright cases.

The FAIR USE Act would limit the availability of statutory damages for secondary liability and allow innovators to make more reasonable business decisions about manageable levels of legal risk. Meanwhile, copyright owners could still get injunctions and actual damages for harm suffered, putting them in no worse a position than civil litigants in most other areas.

The bill would also codify the Supreme Court’s “Betamax doctrine” as it pertains to hardware devices, making clear that manufacturers cannot be held liable based on the design of technologies with substantial non-infringing uses.

Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism.

Broader DMCA and copyright reform remains absolutely necessary, but if passed, this bill would be a big first step in the right direction. Tell your representatives to support it now.

For more information, read the bill here, and check out this EFF article from last year discussing statutory damages and proposing their elimination in secondary liability cases.

(Cross-posted at DeepLinks)

Filed by Derek Slater at 9:47 pm under Uncategorized
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Last week, Viacom sent 100,000 takedown notices to YouTube, but not all the videos included Viacom content. Among the 100,000 videos targeted for takedowns was a home movie shot in a BBQ joint, a film trailer by a documentarian, and a music video about karaoke in Singapore. For its part, Viacom has admitted to “no more than” 60 mistakes, so far. Yet each mistake impacts free speech, both of the author of the video and of the viewing public.

If they are making these kinds of blatant mistakes, who can tell how many fair uses of Viacom content they also targeted in their 100,000 takedowns? If you think your video was removed based on a bogus takedown, contact the Electronic Frontier Foundation at information@eff.org — we may be able to help you directly or help find another lawyer who can. In this situation, as in so many others, EFF will work to make sure that copyright claims don’t squelch free speech.

We’ve also put together this video about the takedowns on YouTube, which you can embed on your website or blog. Check it out, Digg it and spread the word — the more it rises in YouTube’s listings, the more likely it will be seen by users who have received takedowns.

(Cross posted from DeepLinks)

Filed by Derek Slater at 9:32 pm under Uncategorized
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Today, Apple’s Steve Jobs publicly threw down this gauntlet: “If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store… Apple will embrace this wholeheartedly.”

Why should the labels listen?

* DRM is bad for consumers: “[A] world where every online store sells DRM-free music encoded in open licensable formats … is clearly the best alternative for consumers.”

* DRM is bad for innovation: “If [DRM] requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players.”

* DRM is bad for artists: “So if the music companies are selling over 90 percent of their music DRM-free [as audio CDs], what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none…. [More innovation in stores and players spurred by DRM-free downloads] can only be seen as a positive by the music companies.”

Jobs isn’t the only music service provider to invite an end to music download DRM — Yahoo!’s Dave Goldberg has long urged the labels to remove the restrictions, and Real’s Rob Glaser said last month that “DRM-free purchases is an idea in ascendance and whose time has come.”

We agree wholeheartedly with Jobs, since EFF has been making exactly the same points for several years now. As a first step in putting his music store where his mouth is, we urge him to take immediate steps to remove the DRM on the independent label content in the iTunes Store. Why wait for the major record labels? Many independent labels and artists already recognize that DRM is a dumb idea for digital music, as demonstrated by the availability of their music on eMusic. Apple should let them make that music available without DRM in the iTunes Store now.

There are also bigger lessons here for policymakers. The harm done by DRM could be reduced by reforming the DMCA to allow the evasion of DRM for lawful purposes. Moreover, Jobs’ remarks are another reason for policymakers to reject proposed government DRM mandates, which would only serve to further harm innovation, consumers, and artists. Clearly what’s needed in the digital music world is less, not more, DRM.

Make your voice heard in Congress now by opposing mandatory digital and satellite radio restrictions.

(Cross-posted from DeepLinks)

Filed by Derek Slater at 11:03 pm under Uncategorized
6 Comments

JP has everything you need to know to get caught up on Viacom’s C&D’s to YouTube. TopTenSources is aggregating stories about takedown misfires, whether outright errors or overreaching copyright claims.

JP quotes Viacom’s Michael Fricklas saying, “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” As I pointed out in the comments, I don’t think that’s right — YouTube does not have to put the material back up. As long as YouTube takes the allegedly infringing content down, it gets the safe harbor and Viacom can’t go after it. It keeps that safe harbor if the content stays down, and it keeps that safe harbor if it puts the back up pursuant to 512(g).

Responding to a counter-notice following 512(g) protects YouTube from a claim brought by a *user*, but YouTube’s ToS may take care of that anyway.

Filed by Derek Slater at 2:57 am under Uncategorized
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