I start teaching a new seminar tomorrow. It’s called copyright in the 1st century. This week, we discuss whether copyright law needs to be changed to accommodate remix. Above is a video I’ll be using from RIP: a remix manifesto. Also will be using the Lessig TED talk below. The class should be fun!

News: The saga continues, apparently with a happy ending. I’ve already chronicled here how, earlier this summer, YouTube terminated for “terms of use” violation the account of the PS22 chorus, an amazing group of 5th graders from Long Island who sang wonderful renditions of pop songs. The chorus is led by teacher Gregg Breinberg. Breinberg eventually persuaded YouTube that his music videos of the kids singing should not have been terminated. YouTube then allowed him to create a new channel and repost all of the terminated videos. Breinberg did — which probably took a lot of his time.

Well, finally, YouTube has reinstated PS22 chorus’s original YouTube channel, including the past 7 million plus views total for all the videos. Too bad YouTube didn’t do this sooner–and it makes you wonder why YouTube made Breinberg go through the rigamarole of uploading all his videos again. In any event, the PS22 chorus videos can be found here. Let the kids sing.

Click here

News: Great news from Tony Falzone of Stanford Center for Internet and Society:

We’re thrilled to report the Court has upheld our challenge to the constitutionality of the URAA’s restoration of copyrights in public domain works. Today, the Court granted our summary judgment motion, holding the URAA violates the First Amendment insofar as it suppresses parties’ rights to keep using works they exploited when those works were in the public domain.
Needless to say, this is a big deal. It is the first time any part of the Copyright Act has been held unconstitutional and the first time any court has held the First Amendment places specific limits on the government’s ability to raid the public domain. It is also the culmination of a lot of hard work by a lot of CIS lawyers dating back to 2001, including myself, Larry Lessig, Chris Sprigman, Edward Lee, Jennifer Granick, Lauren Gelman, Colette Vogele, Julie Ahrens, Chris Ridder, and others.
I expect there will be more to come, including a return to the Tenth Circuit. Look for updates here. In the meantime, Judge Babcock’s order is attached below.

Click here for the opinion

News: Lessig and Techdirt have excellent posts about the controversy caused by the Authors’ Guild over the new Kindle 2 by Amazon. The Kindle 2 had a cool feature that would allow it to read the text aloud. The Authors Guild objected, apparently claiming the new feature would cause infringement of its copyrighted works read on the Kindle. Amazon said there was no infringement b/c the Kindle made no copy of the work when the text is translated into speech. But Amazon still caved in to the Authors Guild by deciding to utilized the text-to-speech function on a per work basis for those authors who grant permission.

News: YouTube announced this week:

“We are always looking for ways to make it easier for you to find, watch, and share videos. Many of you have told us that you wanted to take your favorite videos offline. So we’ve started working with a few partners who want their videos shared universally and even enjoyed away from an Internet connection.

Many video creators on YouTube want their work to be seen far and wide. They don’t mind sharing their work, provided that they get the proper credit. Using Creative Commons licenses, we’re giving our partners and community more choices to make that happen. Creative Commons licenses permit people to reuse downloaded content under certain conditions. “

Fascinating story about Prof. Charlie Nesson and his team of Harvard Law Students taking on the RIAA.

News: Big news. More here.

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

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

The Abstract:

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

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

Click here for the video

News: The RIAA appears to be running scared from the recent district court granting Harvard Professor Charlie Nesson’s request to webcast Thursday’s court proceedings in the RIAA’s music file sharing case against BU student Joel Tennenbaum. The RIAA has now sought a writ of mandamus from the First Circuit to stop the webcast. The RIAA must realize it looks bad to be suing students, but here’s the spin it is using:

“Petitioners [the labels] are concerned that, unlike a trial transicipt, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and []rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioners’ case.”

News: Lessig reports that YouTube is now allowing free downloads of President Obama’s videos (and, I think, other videos).

News: Charles Nesson is a Harvard law professor and member of the Berkman Center. In a RIAA copyright lawsuit against Boston University students, Nesson is representing the students and has just pulled off some pretty deft strategic maneuvers against the RIAA, not only challenging the constitutionality of the RIAA’s lawsuit but also persuading the judge to webcast next week’s (Jan 22) hearing over the Internet. I will post a link to the webcast when I find it.

Analysis: Charlie Nesson was my evidence law professor, only he didn’t really teach us evidence. By then, he was much more interested in this new technology called the Internet. Nesson is an incredibly creative and “out of the box” (and sometimes “out there”) thinker whose imagination knows no bounds. I look forward to what he chalks up on Thursday of next week!!

Joe Satriani v. Coldplay [lawsuit just filed]

Creaky Boards v. Coldplay

Analysis: My guess: Coldplay settles! I wonder if Coldplay can still win the Grammy for “Viva la Vida,” with all these copyright infringement allegations swirling?

News: For the first time ever, the Copyright Alliance has filed an amicus brief asking the Supreme Court to reverse the Second Circuit’s ruling in favor of Cablevision’s RS-DVR system. The system allows Cablevision subscribers to record shows (time-shifting), with the recordings stored on Cablevision servers. (More from IPLaw 360 and here) Fenwick did an analysis of the case here.

News: I already discussed the letter the John McCain camp sent to YouTube regarding McCain videos removed because of alleged copyright infringement. In YouTube’s response, it asks Senator McCain for help in reforming copyright law:

News:  Several people have alerted me to the copyright controversy brewing over at the McCain-Palin camp, and at YouTube.  McCain’s attorney sent YouTube a letter–addressed to CEO Chad Hurley, GC Zahavah Levine, and copyright counsel Bill Patry–asking YouTube to make a determination that McCain’s unauthorized uses of copyrighted content are clearly fair uses and therefore should not be removed after a DMCA complaint.  Apparently, several McCain videos–McCain’s letter says “numerous“–have been removed by YouTube after YT received DMCA notices from copyright holders alleging that McCain had infringed their copyrights by posting videos with their content, which McCain’s camp says consisted only of clips of 10 seconds or less of copyrighted news broadcasts.

The DMCA does have a “counter-notice” procedure that allows people to seek the re-posting of videos taken down under a DMCA notice, but the process takes between 10 to 14 days for that to happen, which the McCain camp says is not quick enough for the impending election.

Lessig Blog has a copy of McCain’s letter to YouTube. EFF also has copy posted here.

Analysis:  First things first.  Against today’s backdrop of the financial crisis, this controversy over YouTube videos does seem, well, somewhat trivial.  Also, there is some irony in complaining now about “overreaching copyright claims” under the DMCA, a law that I believe McCain voted for in 1998.  I am generally sympathetic, though, to the McCain camp’s call for liberal fair use in the context of a presidential election.  I’ve written an article arguing exactly that (click here). 

One of the problems for YouTube, though, is that the fair use doctrine is notoriously vague, to be judged on a case-by-case basis.  What is “clearly” fair use may depend on the eye of the beholder.  Companies like YouTube follow the DMCA notice-and-takedown procedure in a more cautious manner, in order to avoid being sued.  But the DMCA itself is vague in places — that’s why YouTube faces 2 major copyright lawsuits asking YouTube to pay damages of over $1 billion. 

It’s just too bad we haven’t had any discussion by either presidential candidate about reforming the DMCA at any point in the campaign season.  And with the financial crisis, copyright issues might never get discussed before the election. The frustrations McCain’s lawyers have expressed to YouTube are not new–they are ones with “overreaching copyright claims” that regular people have faced since the DMCA regime was enacted.  Don’t get me wrong:  I’m all for a DMCA safe harbor for Internet companies, but the one we have may need some tweaking or clarification.

I do wonder a little bit about what McCain videos have been removed, and what news networks have actually sought their removal. The McCain camp says “numerous” McCain videos have been removed from YouTube.  How many are we talking about?  I follow all the presidential videos pretty regularly, and I know only of 1 such McCain video involving a clip of Katie Couric that had been taken out of context and used in a negative ad against Barack Obama to suggest inaccurately that Couric was commenting about “sexism” in Obama’s use of “lipstick on a pig.” Is that kind of use of Couric’s broadcast, taken out of context and used in a negative attack ad, a fair use? Hard to say–possibly, debatable at least. Without a case or law saying that this kind of use in presidential campaign material is presumptively or per se fair, YouTube is in a difficult spot to do what the McCain camp proposes.  It would be helpful if the McCain camp identified which videos have been removed and posted them all on the McCain website, where it has a section for videos.  Then we can know what copyright holder or news network sought the takedown (and try to understand its basis for doing so), and see if all of it should be considered fair use or not.

UPDATE: YouTube wrote a letter to McCain denying his request, citing both practicality and the impossibility of determining fair use with reasonable certainty without a court ruling. “Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use,” wrote the YouTube general counsel. (More from PC mag and from ars technica.) Lessig Blog has a copy of YouTube’s letter.

Another option for the McCain camp is to send a letter directly to the news networks that have sent DMCA notices to take down McCain videos, and press their fair use claims with the networks.

News: Video producer Brave News Films, represented by Tony Falzone at Stanford Center for Internet & Society and the Fair Use Project, has sued radio host Michael Savage for an alleged improper DMCA takedown of BNF’s video on YouTube that replayed about a minute of Savage’s rants allegedly about Muslims. YT took down the video after receiving a DMCA notice of alleged copyright infringement and even suspended BNF’s YouTube channel temporariliy. (The channel is back up.)

According to the LA Times Savage’s producer said Savage was not responsible for the DMCA notice in the first place. (The notice is supposed to have the identity of the complainer, so it should be easy for YouTube to reveal who complained.)