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 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.
RIAA afraid of webcast of court proceedings in its copyright case; seeks writ of mandamus to stop public webcast of public court proceedingsJanuary 18, 2009
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).
Charlie Nesson scores victory vs. RIAA: court to webcast lawsuit proceeding in RIAA music file sharing lawsuitJanuary 15, 2009
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!!