Almost three years ago Viacom filed a lawsuit on Youtube, owned by Google, for infringement.  Doesn’t seem too surprising since Youtube harbors an uncountable number of infringing videos because of its enormous amounts of internet traffic.  What is astounding is that Viacom is asking for a hefty $1 billion in damages.  Say what?  Apparently Viacom is calling Youtube out on its negligence of allowing millions of infringing videos over the years to be uploaded and stay uploaded for longer than necessary.  Youtube makes their revenue from advertisements and these advertisers pay more to be displayed on the more popular videos.  Some of the SpongeBob videos of the show had over a million hits per episode.  Viacom claims that Youtube was making money off of these advertisers for these popular videos and either took their time removing them or neglected at all.  Viacom is also saying there is evidence of the employees at Youtube uploading the infringing videos, but there has been no evidence proven in the public light yet.

The first question here is:  Does the site Youtube carry the burden of watching for infringing videos or does the company that the videos infringe have the burden of monitoring for them?

Viacom believes that due to the sheer volume of videos uploaded that are infringing (and the ones that are re-uploaded nearly right after taken down) it is a gigantic waste of time for such a huge company to have to closely monitor the content of someone else’s website.  I think that Youtube should come up with a system that scans either the content or encoding of videos uploaded to the site, there could be trigger codes, much like a security insert in books or on clothes that is caught by a scanner, and the person trying to upload the video receives a notice that it is possibly infringing.  Maybe they have to prove it is not…or maybe this is just a big waste of time.  I see where Viacom is coming from, it’s not just that Youtube is allowing uploads of Viacom’s show content (we talked about this in class, that Youtube cannot really control up goes up, but they can control what goes down) but Youtube is actually making money from advertisers who are paying more to appear on popular videos.

Fast forward three years, the case is still going on.  Last Friday, March 5th, Viacom filed for a summary judgment, claiming there has been enough undisputed evidence to rule in a party’s favor.  During the case, between depositions, emails and other information, these files were kept secret, away from the public eye.  Since the summary judgment has been made, Viacom wants all but the most important trade secrets out in the open and available to the public within two weeks.  Google is basically having a panic attack, calling it a “logistical nightmare,” and is trying to push the information release to June.   I think there is something fishy going on here.  If Google had nothing to hide, what is the problem?  It sounds like they are trying to get more time to clean up their notes.  Meanwhile the summary judgement still remains in the dark.

Alas the second question:  Isn’t it in our constitutional right to have access to trial information as long as it does not involve government trade secrets or extremely high profile cases?  Is Google or Viacom in the right here?

I think Viacom’s asked for sum of $1 billion is a kind of scare tactic for Google.  They will most likely not get that much (right?) but by aiming high they are assuring that they may receive the highest damages award possible.  Since most cases end up available to the public, I think Viacom will win this one of releasing of information.

Who do you think is right in this clash of the corporate titans?

Best summary: http://news.cnet.com/8301-31001_3-10465492-261.html

More in-depth (another blog post a day before this one is also available on the site): http://copyrightsandcampaigns.blogspot.com/2010/03/youtubekeep-summary-judgment-papers.html

While browsing facebook.com I came across a friend’s page that had a photo of Mariah Carey instead of her own as the profile picture. After analyzing the X17 branded photo, I did notice a striking resemblance to Carey, and proceeded to comment, “Wow, you do look like Mariah Carey!”. I’m sure many of us facebook users are familiar with the popularized “doppelganger celebrity week” during which people change their profile pictures to one of their celebrity look-alike. While this is one of the facebook trends that has caught on like wildfire, it has not caught much copyright infringement backlash. Even though these celebrity photo uploads and displays seem innocent, technically, they are illegal and violate facebook “terms and conditions” that state, “[y]ou will not post content or take any action on facebook that infringes or violates someone else’s rights or otherwise violates the law.” The photo used was from x17online.com, and was an original photo taken by the company (assuming it was a work for hire) giving copyright ownership to X17, and arguably making the use an infringement. Interestingly enough, there was no copyright infringement or take down notification sent to my friend. On another note, the famed Perez Hilton was sued by X17 for unauthorized use of X17 photos on his gossip ridden blog (perezhilton.com) which generates about $9,000 – 16,000 in revenue from ads weekly. In my opinion, no action was taken against my friend, or other doppelgangers because there was simply too many users posting copyrighted photos to their profiles. This seems reminscent of the Code Warrior movement of students that is challenging copyright restrictions. In regards to this topic, a facebook executive was quoted saying, “as always, facebook will respond to requests for removal that it receives from copyright holders. In this case, we have received no such requests.” I think that facebook and photo media outlets chose to ignore the omnipresent copyrighted photos. The contradictory nature of facebook and X17 just go to show that the online copyright lines are thinly drawn.

OK Go is a band that has made their career as musicians from the success of their music videos. One video in particular, for the song “Here it Goes Again,” which I’m sure most in the class have seen or at least heard about, featured the band performing a dance on treadmills. What many do not know is that the band created the video themselves, “posted on the fledgling YouTube without EMI’s permission”, and relied on the viral power of the internet to allow the video to spread. This creative self-promotion was not only innovative, but highly successful, as the band generated the interest of tens of thousands of fans daily, and the video was viewed almost 50 million times.

In a recent New York Times article, Damian Kulash described this successful venture, but also highlighted some of the changes in the music industry that are stifling such creativity in marketing. This article points out two distinct issues that work together in a potentially harmful way: the inability of the music industry to adapt to change, and the stifling of artists’ attempts at creative campaigns. Record labels in the past have followed a well-established business model successfully, but the music industry is shifting, and the model appears to be unable to shift accordingly. In the music industry now, many labels are having financial problems and therefore trying to gain revenue from other sources. EMI saw the success of this viral video as an opportunity to create a new stream of revenue, and brokered a deal with YouTube, who agreed to pay a small amount of money for each stream, but because of the impossibility and unwillingness of blog sites and other websites who post such videos to broker a similar deal, the videos were banned from being embedded on any other blogs or websites.

EMI’s decision to not allow embedding of videos is but one example of labels’ knee-jerk reaction in response to decline in record sales and loss of revenue. Rather than recognize the long-term benefit from YouTube, record companies saw immediate opportunity for revenue. Short sighted decisions like this are now common in the music industry, and often prove to accomplish precisely the opposite of what they set out to, as obviously occurred when video views “dropped 90 percent”, and EMI only stood to gross a small amount. Clearly this is bad business, but these decisions have rippling effects beyond the labels’ thinning bottom line. A bottom line that the $5,400 that EMI possibly stands to gain from YouTube streams certainly can’t make up for. EMI has now just limited the availability and buzz of the band, which will lead to a decrease in record and merchandise sales, and concert attendance. Not only has EMI stifled the creativity of the band, but they have also used copyright law as a detriment to themselves. OK Go is a band of musicians that write songs and release records, but they have other creative outlets that have sustained them as a viable touring and recording act. Because of contracts and copyright law, EMI has the option to stifle that creativity, and unfortunately has done exactly that in this instance.

This issue has the potential to harm not only the executives who profit from the artists they represent, but also the future of music altogether. Traditionally, as long as band’s creativity and a label’s opportunity to profit converge, each coexists peacefully. More recently, however, labels have begun to show just how far behind the times their business model lies, and this article highlights one example of this. Bands have an understanding of their audience and an ability to connect with their fans in ways that record labels cannot. Artists’ creativity often extends further, than music and lyrics, and has to nowadays, as evidenced by OK Go’s video project. Stifling this creativity obviously does not benefit either artist or label.

In this course so far, we have learned about copyright in history and the digital era, and examined the effects of copyright owners’ attempts to enforce their rights for personal gain. Whether one believes that the scope of copyright is too broad and is being abused by copyright owners or not, this is certainly a case where the copyright owner validated their own rights, but lost a great deal in the process.

http://www.nytimes.com/2010/02/20/opinion/20kulash.html

I am also posting a link to their new video, which has been getting a lot of attention recently and is, in my opinion, pretty brilliant.

http://www.youtube.com/watch?v=qybUFnY7Y8w

So I met these Germans last week, and I asked the girl about this tattoo on her wrist because it was partially hidden by a bracelet. “What is your tattoo?” I asked her.
And she explained to me another danger of copyright……
“Well it used to be a Jonah Matrenga tattoo!” I had not heard of this musician but he is actually quite good. Here is a link to his myspace http://www.myspace.com/jonahmatranga. But take note of his profile image, it’s his logo, a heart/question mark.

More importantly, if you are really into music, maybe you know Jennifer Lopez is trying to make her comeback. In addition to her wipe-out on her new year’s eve performance, she also performed on Saturday Night Live this past February. You can watch  the video in the link below.

http://dirtywhorelebrity.com/2010/03/01/videojlo-on-snl/

If you take a good look, you can see quite a similar logo on the drum and stage (also in the picture below). There have also been rumors about a new album she’s going to put out this summer, “Love” or “What is Love?”

Doesn’t make too much of a difference to me, but this girl Stephanie said, “If she puts this new logo on her album, then it will really be a J Lo tattoo.”

If you go to Jonah’s music community, some fans comment: “Oh. I guess her new album is called Love? I’d say you should wait until the album is successful before you sue, Jonah, but it will almost certainly bomb.” There hasn’t been much discussion of this logo confusion in the news or other places online, but I think it could be grounds for copyright infringement. (horsehead)

Matrenga released the image in his album “The Three Sketchyes” in 2007 (above), well before JLo’s attempt at a comeback, but I’ll let you be the judge, would it be infringement? And let this just be a warning to you, think twice before you get a tattoo of your favorite musician’s logo, your taste may not change, but you can’t account for something like this….

Although you might not have seen it, chances are good, that you know Hurt Locker is a film that has recently been screened in theaters all over the country ( 535 theaters to be precise.) In the movie industry, distributors consider the opening weekend of their movie crucial for the success of a theatre run. An opening weekend that grosses around $10000 per theatre is considered a good opening. Opening in only four theaters, Hurt Locker grossed on average a little over $38000 per theatre, which is a great success for any movie, let alone a rather small ( in comaprison with Hollywood’s studio system) independent picture. It went on to gross $12.67 million domestic and $ 6.56 million in the foreign territories.

Depicting life as a soldier in bomb squad unit in Iraq, the movie managed to grab the audience’s interest, probably due to the country’s involvement.

The turnaround happened yesterday, when Sgt. Jeffrey Sarver filed a Complaint with New Jersey’s Court District http://www.scribd.com/doc/27777754/Sarver-Complaint-NJ-Version-Final-03-02-2010-w-Case).

According to his complaint, the film , which is based on a 2005 story published by Playboy  depicts not only his struggle in Iraq, but also infringes his personal copyright, without any financial compensation or written agreement to do so.

Besides Writer Mark Boal ( who wrote the screenplay and the original Playboy article) and Director Kathryn Bigelow, Sgt. Sarver also sues The Hurt Locker,LLC and the Distributor Summit Entertainment, LLC, amongst others.

The claim made a total of seven counts, all depicting how the plaintiff was used for enriching the defendants. Furthermore, five out of the seven counts ask for financial compensation of $ 75000, as well as attorney fees.

Although the complaint doesn’t include specific US Code referrals, it says that ” The Defendants’ various different uses of Plaintiffs’ name and/or likeness was mainly for commercial or trade purposes, without redeeming public interest, news, or historical value.”

As one might imagine, this formulation excludes a possible claim by the defendant to plead for fair use.

Further information (and commentary) are provided by Business Week (http://www.businessweek.com/news/2010-03-03/army-bomb-expert-alleges-he-inspired-hurt-locker-update1-.html) and Playboy http://www.playboy.com/articles/man-in-the-bomb-suit-sergeant-jeffrey-sarver/index.html).

The fact that the original story reolved around Sgt. Sarver excludes the probability, that his life story is similar to the film’s plot. The case, at least the case that his life was used for the motion picture is rather obvious. However, I can’t make any sense out of Mr. Boal’s decision to not alter the script and thereby protecting himself and his fellow filmmakers from a lawsuit.
Anyone?

Some of you might have heard of Nina Pailey.
After being dumped by a former significant other via e-mail, she decided to get over her disappointment creatively, by making a movie called Sita Sings the Blues.
The interesting part of this movie is its license. Released under a Creative Commons Attributions-Share Alike License,it permits free download and distribution of the movie. However it prohibits the use of DRM and profiting of the movie. This is an interesting case, basically the contrary of what we are used to by big media corporations.

Even more interesting is her latest Youtube video, “All work is creative”. I highly suggest you watch the video (http://blog.ninapaley.com/2010/02/09/all-creative-work-is-derivative/) to get an idea of her claim. Switching through different artwork, Ms. Pailey not only juxtaposes, but shows how similar pieces can be. This theory would bring a complete new discussion into the realms of copyright law.

If every work would be derivative, thousands of lawsuits could be filed and certainly not all be accused under fair use.
What do you think about her claim?

This was an interesting article I found when I was looking for a fair use case. It hasn’t yet been brought to court and I’m not sure it ever will be. But here is what happened: Lisa Jack took a series of photographs of Barak Obama in 1980 when they went to school together. They were never published or formally exhibited until recently. In 2008 the photographs were used in Time Magazines “ 2008 Person of the Year” issue. Sense then, the National Organization for the Reform of Marijuana Law (NORML) appropriated one of the pictures in 2009 for an annual conference poster. One of the photos Jack took showed Obama smoking a cigarette. NORML digitally altered the photo to show Obama smoking a blunt with the caption “Yes We Canabis” written at the top. The posters were handed out to attendees and are also available for purchase on the web ($15-25). So the question is whether or not this is considered fair use. NORML never received permission to use the photograph. However, the intended use, which was obviously transformative, makes the infringement somewhat acceptable. Personally, I was wondering if the poster is considered slanderous to Obama’s reputation, and if so, how does that affect NORML’s case for fair use.

Here is the link for the article: http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html

And this is a link showing the photos Jack took: http://www.time.com/time/photogallery/0,29307,1866765_1815160,00.html

A recent Mashable article informed me of a lobby group called The International Property Alliance that wants the US government to put countries that advocate or use open use software on a watch list of enemies of capitalism. What is interesting to me about this article is not how outrageous the groups claim is, but how (at least for some) there appears to be a natural link between strict copyright laws and capitalism and lenient laws and communism. Yes, open source software is likely to make less money and have creators who are less interested in making a lot of money than software that is sold and copyright protected. But doesn’t open source seem to come out of the “marketplace of ideas” as much as anything else? Whether it be open source or more traditional software, they are still competing with one another and hopefully the best software will be the most popular in the end.

For those of you who missed some or all of our viewing of this documentary on Thursday (and all of you missed the half I cut out), The New York Chapter of the Internet Society is hosting a screening of the whole thing next Friday, with a great Q&A afterwards:

Friday, March 5, 2010
7:00pm – 9:00pm
NYU Warren Weaver Hall
251 Mercer Street, room 109

Legendary remixer Steve “Steinski” Stein, the inspiration for many recent artists including Girl Talk, will join producer Kembrew McLeod for the Q&A session after the screening.

Public Welcome – Admission Free
Sponsored by ISOC-NY, FreeCulture NYU, NYU ACM, Brooklyn Law Incubator & Policy Clinic, tech@nyu

I think we can all agree with John Tehranian when he says in his essay, Infringement Nation: Copyright Reform And The Law/Norm Gap, that “three key trends bear close observation. First, copyright law is increasingly relevant to the daily life of the average American. Second, this growing pertinence has precipitated a heightened public consciousness over copyright issues. Finally, these two facts have magnified the vast disparity between copyright law and copyright norms and, as a result, have highlighted the need for reform.”

Well, we Americans aren’t alone. In an article “Copyright laws confusing majority of Brits” (also posted on Delicious), Dave Parrack tells us that “Copyright laws need amending in a big way to take into consideration the Internet and digital technologies.” No kidding. What’s different here, however, is that he tells us that the laws are “created at a certain time with no foresight as to what is going to happen in the future” (which I suppose can be said for us as well, given all of the extensions that have been given to copyright ownership), which is a problem because, as Jessica Litman stated in The Exclusive Right to Read, “Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission—potentially actionable events under the copyright statute—into daily transactions.”

However, the technological issues that those in the UK are dealing with are slightly different than ours. For them, it is still illegal to copy a legitimately purchased CD for any reason, even to their computers, and to put that music on an mp3 player. This was surprising to me, because I’m pretty sure this really hasn’t been an issue here, and that our issues involving copyrights and music arose with Napster and peer-2-peer file sharing.

Parrack is absolutely correct in saying that his “guess would be that the U.K. isn’t the only country to have failed in its mission to keep on top of new media and update its laws accordingly,” because we may have updated our laws enough times, but accordingly? Eh. I can’t say I think we have or we haven’t—everything just still seems to be so circumstantial and has to be taken case-by-case. Perhaps the Brits will comes to realize this as well when they begin to have more issues with files sharing, like we do… especially if merely copying a CD to their computers is illegal now!

My question after reading this, however, is whether or not I, in the US, can copy a CD by an artist from the UK to my computer or iPod. Under the question posed in US Copyright law FAQ: Copyright in General, “Is my copyright good in other countries,” the answer is, “The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country,” which leads me to believe that we really aren’t supposed to, which I never considered until now. I’m learning about more laws that I’m breaking every day!