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.

News: One of my students showed me this nifty website founded by some bright kids at MIT.  The group is called MIT Free Culture — I take it inspired by Larry Lessig — and it tracks 230,348 videos on YouTube to see how many are removed for alleged copyright violations.  So far, 4,948 such videos removed from YouTube, presumably based on DMCA notices.

Analysis:  These are interesting numbers. Of course, we don’t know how many of these copyright claims were legitimate.  And we don’t know how MIT Free Culture chose its sample.  So, putting aside all those variables, the number of DMCA notices seem rather low — by my math, a little over 2% of the total videos in the sample.  So that suggests that a lot of the content on YouTube is not infringing or copyright holders don’t mind.

News: Back in August 2007, I reported on the 6 copyright lawsuits filed against YouTube. Well, it appears that in 4 of those cases, the lawsuit has been dropped voluntarily by the plaintiff. At least a few of the plaintiffs (Robert Tur, Cal IV publisher) joined the class action in New York against YouTube.

Another key development: Mayer, Brown attorneys Richard Ben-Veniste, Andrew H. Schapiro, and A. John P. Mancini, have now been brought in to be the attorneys of record for Defendants YouTube, Inc., YouTube, LLC, and Google Inc. They replace the law firm of Bartlit Beck Herman Palencher & Scott LLP, and its attorneys, Philip S. Beck, Mark S. Ouweleen, Rebecca Weinstein Bacon, Shayna S. Cook, and Carrie A. Jablonski. I don’t know the reason for the change in lawyers, but it’s definitely an interesting switch. I used to work for Mayer, Brown! Ben-Veniste is famous for being one of the Watergate prosecutors. He doesn’t specialize in copyright law, but neither did Philip Beck, the lead counsel Ben-Veniste is replacing.

One thing that is striking to me is that now all the copyright cases are located in the Southern District of New York. I wouldn’t necessarily think that strategy helps YouTube, which might have been helped by having several different courts consider some of the novel issues presented in the cases. This is pure speculation but maybe the plaintiffs’ attorneys in the New York cases persuaded all the others to drop their suits and join them?

Here’s an update on all the cases.

(1) DROPPED: Robert Tur’s suit in California for the Reginald Denny beating video (with a request by Viacom + NBC Universal to file an amici brief). Tur just dropped his suit to join the class action suit with Premier League in (3) below.

( 2) Viacom’s suit in the Southern District of New York (for Daily Show, Colbert Report, Sponge Bob, South Park, MTV clips, etc.) Just had a scheduling conference; apparently will have another. Philip Beck Richard Ben-Veniste of Mayer, Brown is now YouTube’s lead counsel. Don Verrilli is Viacom’s lead counsel. Judge Louis Stanton is presiding. Viacom International, Inc. v. YouTube Inc., 07-CV-02103. (Case docket from Justia)

(3) English Football Ass’n Premier League (soccer division) and Bourne Co. (U.S. music publisher) suit, with a request to certify a class action, in the Southern District of New York. So far, the Rugby Football League, the Finnish Football League, the National Music Publishers’ Association, and Knockout Entertainment Limited, Seminole Warriors Boxing, Robert Tur (from the 1st lawsuit), the Federation Francaise de Tennis, and Ligue de Football Professionnel. have also joined in the action. Also joining the class is New York-based Cherry Lane Music Publishing, which “owns more than 65,000 copyrights, including the publishing rights to music from Elvis, Quincy Jones, and the Black Eyed Peas.” Max Berger is lead counsel for Premier League; Philip Beck Richard Ben-Veniste of Mayer, Brown is lead counsel for YouTube. Judge, TBD. The Football Association Premier League Limited v. YouTube, Inc., 07 CV-3582. (Case docket from Justia)

(4) VOLUNTARILY DISMISSED: David Grisman, a mandolin player who performed with the Grateful Dead, along with his partner Craig Miller and company Dawg Music. They are also seeking to certify a class action of musicians against YouTube in the Northern District of California. Joseph Tabacco is lead counsel for Grisman. David Kramer is lead counsel for YouTube. Judge Susan Illston is presiding. Grisman v. YouTube, Inc., 2007cv02518. (Case docket from Justia)

(5) DISMISSED: The New Jersey Turnpike for use of certain surveillance footage. Suit in New Jersey. Judge Katharine S. Hayden is presiding. New Jersey Turnpike Authority v. YouTube, Inc., 2:2007cv02414. (Case docket from Justia)

(6) VOLUNTARILY DISMISSED: Country music publisher Cal IV, which owns rights to the songs by Faith Hill, Tim McGraw, and others. Also seeking a class action, this one in Nashville. Daniel Girard is lead counsel for Cal IV. James Doran and Robb Harvey, two Nashville attorneys, represent YouTube. Judge Robert Echols is presiding. Cal IV Entertainment v. YouTube, CV-00617 (Case docket from Justia) JOINED THE CLASS ACTION IN SDNY.

Don’t worry, Perez wasn’t booted for long.  He’s back up.

News: The Barack Obama campaign posted a clip from this weekend’s Saturday Night Live featuring Barack Obama, in a skit making fun of Hillary Clinton and the other Democratic candidates. Newteevee reports that NBC had previously sent YouTube a notice to remove a different copy of the video. But the Obama campaign posted another one — although it’s not clear if with permission from NBC.

Analysis: I think the copyright issue is purely academic at this point. For PR reasons, NBC won’t be going after the Obama campaign for video of Barack Obama himself.

News:  Prince has hired the service Web Sheriff to patrol YouTube for unauthorized videos of his music and concerts.  So far, reportedly the Web Sheriff has asked YouTube to remove 1,000 unauthorized clips.  John Giacobbi, managing director of Web Sheriff, says, “At the end of the day, if you take copyrighted music and film off YouTube, most of its business would be gone.”  (More)

Analysis:  I hate to say it (because I used to be a big fan of Prince) but Prince is washed up.  The worst concert I went to last year was Prince in a hotel bar in Las Vegas.  The performer was two hours late (apparently, that’s his MO) and then performed songs that were unrecognizable to most.  You had to pay extra for seats, so most people had to stand or sit on the floor for two hours or more.  I would have had no problem if the show times were accurately reflected on the tickets, but the promoters of the show obviously must have known that it would lose a lot of customers if the tickets said “Prince, 12:30 a.m. to 3 a.m.”   

News: I reported here a couple weeks ago about the questionable DMCA notice that Viacom (MTV) sent YouTube to take down the short video below posted by Chris Knight. MTV had taken footage from Knight’s YouTube video and played it on the MTV show, “Web 2.0 junk.” Knight found out about his video making it on MTV, so he posted the short clip of his video as shown on MTV. The only problem — MTV complained to YouTube that it was copyright infringement — even though Knight’s own video really was what the content was all about.

Well, now finally sanity has been restored. Viacom has backed down and admitted (at least internally) its own mistake. Chris Knight reports on his blog that YouTube has restored his video, after intervention from EFF’s Fred Von Lohmann. Knight is also quick to write that he has no hard feelings with Viacom and asks that his readers not have any, either.

Analysis: My guess is that maybe MTV didn’t even know Chris Knight was the one posting on YouTube the clip from MTV showing Knight’s own video. It’s good that MTV/Viacom came to their senses and realized that they would be on the losing end if this ever went to court, especially after EFF got involved.

News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).

Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.

So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:

“That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!”

Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages.  So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove).  It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work.  Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).

We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?

News: As I reported earlier, video clips of Beyonce falling down stairs at her concert in Orlando last week have become very popular on YouTube. Although it appeared that YouTube removed a number of the clips for “terms of use” violation (either because Sony BMG sent a DMCA notice or because Beyonce didn’t consent to the video), YouTube seems to be allowing the clips of Beyonce now on YouTube.

The video clip that I pointed out before (posted on July 25) is still up on YouTube, as are a number of other Beyonce clips.

Analysis: It’s hard to know what this means. It could mean that Sony BMG took away its DMCA notice or limited it to allow some of the clips. I find it hard to believe that YouTube would unilaterally make a decision to keep the clips up on its own after taking some down.

News: On Tuesday, Beyonce took a huge fall down steps in her performance in Orlando. She later told the audience it “hurt so bad”–and by the looks of it, it could have been worse, so thankfully she wasn’t seriously hurt. She even got right back up and continued the song. She later told the audience, “Don’t put this up on YouTube.”

Well, of course, they didn’t listen and put up homemade clips from the show (probably taken on cellphones). The clips were viewed often all week. Then, YouTube took them down for “terms of use” violation, apparently meaning possible copyright violations (of the song performed) and unauthorized use of the video of Beyonce (who likely did not consent to the video). Sony BMG apparently sent YouTube a DMCA notice for copyright infringement. (More) YouTube, though, doesn’t seem to be finding all the clips yet because, last time I checked, you can find one clip here.

BTW, I think the concert venue staff are really the ones responsible for all the unauthorized clips. Maybe it’s too hard to control, but they let this happen.

News:  The EFF gang is at it again.  This time, they’re suing Universal Music Group on behalf of Stephanie Lenz for sending YouTube an allegedly improper takedown notice under the DMCA to remove video of her baby dancing to Prince’s “Let’s Go Crazy”  for 29  seconds.  (Complaint) (More)

Analysis:   Fair use is always a difficult thing to predict because courts have a lot of discretion to decide however they see fit.  And I don’t think there’s been any test case for fair use of background music in a home video.  This one, though, seems to me to be a pretty strong case of fair use.  The segment of Prince’s song is short and barely audible amid the ruckus created by the kids.  It’s not substitutional of Prince’s song in any respect.  Also, the song was used in one of those spontaneous moments involving a baby that all parents want to preserve on film to document their child’s growth.  I think it would be similar to a news reporter showing a scene from a county fair and having (spontaneously) some live music being captured in the background.

News: YouTube apparently has given the Smosh boys (Anthony Padilla and Ian Hecox) back the 24 million views that were erased from their overall view count after YouTube removed Smosh’s most popular video involving a Pokemon lip synch (notwithstanding a strong parody fair use defense for Smosh). The video was removed after the copyright holder to Pokemon sent YouTube a DMCA notice.

The other big news is that Lonelygirl15 just got passed by Fueled by Ramen, an independent label.

News: Last week, I reported that YouTube removed Smosh’s mega-popular Pokemon video after receiving a DMCA notice (for copyright infringement), notwithstanding a strong parody fair use claim for Smosh. Under the DMCA, a website has a greater chance of staying within the safe harbor (and avoiding copyright liability) if it expeditiously removes content identified by a copyright holder in a DMCA notice.

One of the fallouts of the take down is that Smosh lost over 24 million views to its tally, placing it back closer to lonelygirl15 — 56 million to 52 million. If you are not aware, Smosh and lonelygirl15 are No. 1 and No. 2 in total views on YouTube for amateur productions.

News: YouTube has removed Smosh’s mega-popular “Pokemon” video after receiving a copyright DMCA notice from Shogakukan Production Co. Ltd. The Pokemon video was the 4th most watched video ever on YouTube, with over 24 million views. To my knowledge, this is the most popular video ever removed by YouTube under a DMCA notice. By the way, if you don’t know who “Smosh” is, it’s a pair of 20-year-olds Anthony Padilla and Ian Hecox. They are the No. 1 Most Subcribed Director on YouTube, and they have the Most Views All-Time on YouTube of any amateur or user-generated content. Smosh, in other words, is the top of the heap at YouTube.

Analysis: This is a close, perhaps questionable, call. The Smosh boys did use the “Pokemon” theme song for their video, but they seemed to me to be parodying the whole Pokemon character, with a pretty over-the-top lip synch and use of Pokemon stuffed animals.

A parody fair use is permitted under copyright law, the only question is whether too much of the copyrighted work is taken. Unfortunately, that question is determined on a case-by-case basis. And, in this case, YouTube appears not willing to risk falling outside the DMCA safe harbor, so it chose to follow the more expedient path under the DMCA of taking down the video.

If you want to see if the video should be considered a parody fair use, I believe a version is still up on Veoh and probably elsewhere on the Internet.

News: Businessweek has an article today describing the whole notice-and-takedown process at YouTube. Viacom has a cadre of people searching for clips on YouTube that infringes Viacom’s copyrights, spending about $100,000 per month for the process. Viacom doesn’t like it (and that’s why they sued): ” Since November, Viacom says, it has reviewed 2 million clips and sent 200,000 takedown notices to the site, a 10% hit rate.”

YouTube has its own cadre of people, who work 24/7, to take down clips for which a copyright holder sends in a DMCA notice. The unit is called SQUAD, the Safety Quality User Advocacy Department.

Analysis: This is a battle over philosophies (and how the burden to search for infringing works should be allocated): Viacom wants pre-screening on the front-end by YouTube, placing most, if not all, of the burden on YouTube, while YouTube wants an automated process coupled with the DMCA notice-and-takedown process (supplemented by whatever filtering technology that develops)–which places some of the burden on the copyright holder to identify the works in a DMCA notice. What the DMCA requires is what the Viacom lawsuit is all about.

The stats by Viacom are interesting. I’d like to know what the so-called “hit rate” has been after it sent YouTube all the DMCA notices. YouTube says it has “hashing technology” that automatically blocks any copy of a clip that’s already been removed under a DMCA complaint. If that’s true, Viacom’s hit rate could have gone down by now.

News: A few weeks ago, Moveon.org sued Viacom for an allegedly false misrepresentation on a DMCA sent by Viacom to YouTube to take down a parody of Stephen Colbert’s truthiness. The parody was called “falsiness.” Under the DMCA, section 512(f), a copyright holder that makes a misreprentation on a DMCA notice can be held civilly liable “for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Initially, Viacom’s lawyer sent a letter to EFF denying completely that it had sent the DMCA notice. (I found the letter a little smug in calling out “Fred” and “Larry” by name, referring to Moveon.org’s lawyers, Fred von Lohmann and Lawrence Lessig, but that letter is nowhere to be seen on EFF’s site.) Now, Viacom has ‘fessed up to sending the DMCA notice and admits that it shouldn’t have because the parody is a fair use and (not copyright infringement) (See the Viacom letter).

As a part of the settlement, “Viacom has agreed to set up a website and email ‘hotline,’ promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.” Viacom’s website will have language informing users of rights, as outlined in this Viacom letter. According to another letter, Viacom’s website also will state: “Regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted materials where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non commercial purposes.” (More here and on EFF’s website)

Analysis: This is a victory for fair use, and EFF (particularly, Fred von Lohmann) deserves credit for securing this settlement. I’m glad Viacom owned up to its error and even more glad that it says it will implement on fair use policy on its website.

To me, the biggest part of the settlement is Viacom’s general acceptance of users’ transformative, noncommercial uses of its copyrighted works. This is consistent with what Don Verrilli, Viacom’s lawyer in the suit at YouTube, said at the Fordham conference about “transformative uses being OK.” I’ll be saying a lot more about this kind of sentiment in an article, but suffice it for now to say that I believe this sentiment is a very important development for copyright law.