Wednesday, June 23, 2010
Monday, May 24, 2010
Silicon Valley Internet Coalition Team Brief
Viacom Int’l Inc. et al v. YouTube Inc., et al.
Amicus Curaie Brief of Technology Companies
5/22/2010
Silicon Valley Internet Coalition Team
Tonya Gisselberg
Jessie Kennedy
Brady Kriss
Koichi Kudo
Hyuna Min
Shingo Tsuchiya
Nai-Chung Wang
Wei Wu
I. The Technology at Issue Has Benefited Society by Providing a Platform for Communication, Creativity, and Innovation:
A. The Internet generally, and user-generated content sites in particular, provide an open forum where individuals can express points of view, share opinions and commentary, and generally engage with one another - to the benefit of society as a whole.
B. Computer and software technology has sparked the widespread distribution of “user-generated content” (UGC), which in turn promotes individual expression and creativity and provides a platform for emerging artists.
II. An Overly Expansive Application of the Copyright Law Would Stifle Creativity and Inhibit Innovation.
A. It is critical that the law continue to allow technology companies to innovate without fear that their otherwise socially valuable technologies will subject them to liability whenever misused by third parties to infringe copyright.
B. Legal Precedent:
1. In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court recognized the value of technological innovation and articulated a test for copyright infringement that shielded technology companies from potential liability, even if their products could be and were used for some copyright infringement.
a. In Sony, the Supreme Court held that distribution of technology does not give rise to per se liability for copyright infringement where the technology is “capable of substantial noninfringing uses.” Id. at 442.
b. The “Substantial Noninfringing Use” Test has enabled the explosion of innovation, such that the Internet and digital technology are now a familiar aspect of the daily lives of most people.
c. If using a new technology is prohibited by Copyright Law, it would expand the scope of copyright monopolies to cover a commerce clause that is not the subject of copyright law.)
2. In MGM v. Grokster, 545 U.S. 913 (2005), the Court addressed the potential liability stemming from peer-to-peer file sharing technology:
a. The Inducement Rule: Grokster articulated the inducement theory of liability for copyright infringement: “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 919.
i. The rule bases liability on “purposeful culpable expression and conduct,” which in the Court’s view does “nothing to compromise legitimate commerce or discourage innovation having a lawful promise.” Id. at 937.
ii. The boundary of what constitutes “lawful promise” was not fully established in this case, although the Court viewed the following three pieces of evidence of Grokster’s intent to be notable:
1. Each company was aimed at satisfying a known demand for copyright infringement, i.e. filling the void left by Napster.
2. Neither company attempted to develop mechanisms to diminish the infringing activity using their software.
3. The company’s business model was based on selling advertising space, which in turn was based on the number of users, which the record showed were mostly infringing.
b. Distinguishing Sony: “[W]here evidence goes beyond a product’s characteristics or the knowledge the it may be put to infringing uses, and shows statement or actions directed to promoting infringement, Sony’s staple article rule will not preclude liability.” Id. at 935.
c. Viewpoint on Copyright and Innovation: The Supreme Court recognized the tension between “the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement,” and stated that the tension between the two values was the subject of the case. Id. at 928.
i. The Court emphasized that Sony left “breathing room for innovation and vigorous commerce.”Id. at 933.
ii. The Court nonetheless found the argument for imposing secondary liability in Grokster to be a powerful one, given the facts of active solicitation of infringing activity by the company.
C. The Digital Millenium Copyright Act ("DMCA")
1. The DMCA was designed to reduce uncertainty and facilitate the development of e-commerce, communications and technology. See. Br. of Amicus Curaie American Library Assoc. et. al., Case No. 1:07-cv-02103-LLS (summarizing the record of Congressional intent when enacting the DMCA). To achieve this aim, the DMCA includes a "Safe Harbor" limiting liability for Internet Service Providers ("ISPs") that host a forum for users to upload content, provided that the ISPs comply with certain preconditions. Four specific types of activities are eligible for the limitations on remedies provided by section 512 and YouTube could fall within one of those four categories - ‘information residing on system or networks at direction of users’(§512 (c)).
2. Actual or Apparent Knowledge (§512 (c)(1)(A))
To qualify for the section 512(c) safe harbor, ISPs are required to expeditiously remove infringing material once they have actual knowledge of infringing activity or are aware of facts or circumstances from which infringing activity is apparent.
Plaintiff must produce evidence that the service provider had knowledge of particular infringing material on its service, but declined to expeditiously remove it(§512 (c)(1)(A)(i)). It is not sufficient for the plaintiff to show a provider’s general awareness of infringement. Actual knowledge requirement could be satisfied when a service provider get an adequate notice of infringing activity from a copyright holder. Without such actual knowledge, plaintiff must prove the fact that a service provider is aware of facts or circumstances from which infringing activity is “apparent” (§512 (c)(1)(A)(ii)). Importantly, it is not required for a service provider to monitor its service or affirmatively seek facts indicating infringing activity. A service provider may not be charged with knowledge based on circumstances that it did not actually know about, but perhaps could have uncovered by more actively monitoring user activity. Therefore, the service provider must remove material on its own – without receiving a takedown notice – only where the infringement would be apparent from even a brief and casual viewing. If it is not obvious whether a material is appropriately authorized or not, or whether use of a copyrighted work is fair use or not, then it should not be considered that the service provider is aware of facts or circumstances from which infringing activity is apparent.
3. Direct Financial benefit (§512(c)(1)(B))
In Napster, the Ninth Circuit held that financial benefit exists where the availability of infringing material “acts as a ‘draw’ for customers. In Ellison v. Robertson, the Ninth Circuit held that directness of a financial benefit hinges on whether the infringing activity constitutes a draw for subscribers, not just an added benefit. However, the distinction between a “draw” and just an “added benefit” seems unclear and vague. Moreover, most service providers pursue profit and technically, there could be causation between infringement and some of the profit. Therefore, stricter standard is required especially where a service provider’s business model is the industry standard and there is no financial discrimination between noninfringing material and infringing material.
4. Right and Ability to control (§512(c)(1)(B))
The question of this provision is not whether the service provider has the right and ability to control its system, but rather, whether it has the right and ability to control the infringing activity. The Ninth Circuit has interpreted the ability-to-control standard to mean practical, not just theoretical ability. The Ninth Circuit affirmed a district court’s holding that Google lacked the practical ability to control infringing activity because its technology was incapable of comparing every image on the web to every copyrighted image in existence. Therefore, if a service provider has technical tool to compare just the title of the video and not the video content itself, it should be considered that the service provider has no right and ability to control infringing activity.
III. Strong Market Incentives Exist For Technology Companies to Comply With Existing Law to Protect Both Privacy and Copyright Rights.
A. Privacy issue
This case involves several issues. Since Youtube was asked for providing their customers’ personal information, I would like to talk about the privacy issue.
There are several Acts relevant to the privacy issue:
1. The Privacy Act (1974):
The Privacy Act of 1974, as amended at 5 U.S.C. 552a, protects records that can be retrieved by personal identifiers such as a name, social security number, or other identifying number or symbol. An individual is entitled to access to his or her records and to request correction of these records if applicable. The Privacy Act prohibits disclosure of these records without the written consent of the individual to whom the records pertain unless one of the twelve disclosure exceptions enumerated in the Act applies. However, The Privacy Act binds only Federal agencies, and covers only records in the possession and control of Federal agencies.
2. Family Educational Rights and Privacy Act (1974)
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
3. Rights to Financial Privacy Act (1978)
The Right to Financial Privacy Act (12 U.S.C. § 3401 et seq.), also known as the RFPA is a United States Act that gives the customers of financial institutions the right to some level of privacy from government searches. Before the Act was passed, the United States government did not have to tell customers that they were accessing their records, and customers did not have the right to prevent such actions.
4. Electronic Communications Privacy Act (1978)
The law was enacted in 1986 and covers various forms of wire and electronic communications. According to the U.S. Code, electronic communications "means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce." The law prevents government entities from requiring disclosure of electronic communications from a provider without proper procedure.
5. Video Privacy Protection Act (1988)
The Video Privacy Protection Act of 1988 (codified at 18 U.S.C. § 2710 (2002)) was passed in reaction to the disclosure of Supreme Court nominee Robert Bork's video rental records in a newspaper. The Act is not often invoked, but stands as one of the strongest protections of consumer privacy against a specific form of data collection. Generally, it prevents disclosure of personally identifiable rental records of "prerecorded video cassette tapes or similar audio visual material."
6. Children’s Online Privacy Protection Act
The act, effective April 21, 2000, applies to the online collection of personal information by persons or entities under U.S. jurisdiction from children under 13 years of age. It details what a website operator must include in a privacy policy, when and how to seek verifiable consent from a parent or guardian, and what responsibilities an operator has to protect children's privacy and safety online including restrictions on the marketing to those under 13.
Some of these Acts only bind to the government and none of them can be applied in the present case. The US government prefers a self-regulation Internet environment which means Congress will give ample space to companies to have their own privacy policy.
Accordingly, the “Framework for Global Electronic Commerce” report which was released by President Bill Clinton set forth that “In all commercial media, there is a constant tension between a desire by the public for privacy and a need for information about the viewing audience. Sometimes the tension is left to be resolved in the marketplace; governments have often mediated it through various data protection regulation. As the Web continues to mature as a commercial media, it is particularly prone to this dissonance due to its interactive nature. Users often wish to provide information so as to customize their experience without forfeiting all privacy. Services wish to oblige users, while also complying with disparate legislation across multiple countries”.
Thus, I think if we want to discuss the privacy issue in this case. The statues are helpless. Maybe we have to look into the Contract between customers and YouTube. I found the YouTube’s privacy policy terms as follows:
Information sharing
Google only shares personal information with other companies or individuals outside of Google in the following limited circumstances:
We have your consent. We require opt-in consent for the sharing of any sensitive personal information.
We provide such information to our subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of processing personal information on our behalf. We require that these parties agree to process such information based on our instructions and in compliance with this Privacy Policy and any other appropriate confidentiality and security measures.
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against imminent harm to the rights, property or safety of Google, its users or the public as required or permitted by law.
If Google becomes involved in a merger, acquisition, or any form of sale of some or all of its assets, we will provide notice before personal information is transferred and becomes subject to a different privacy policy.
We may share with third parties certain pieces of aggregated, non-personal information, such as the number of users who searched for a particular term, for example, or how many users clicked on a particular advertisement. Such information does not identify you individually.
Please contact us at the address below for any additional questions about the management or use of personal data.
According to the contract, if the customers of YouTube are liable for copyright infringement, YouTube still cannot reject to provide their customers’ information by relying on privacy protection.
B. The holding in Grokster does not actually require that any particular steps be taken by an ISP to avoid infringement liability. However, Grokster was found to have induced infringement in part because they had not implemented any filtering technology. In the intervening years, technology companies, including Google and YouTube have been working to develop better technology to filter out infringing content. However, the development of such technology is not instant, but progresses over time. Since buying YouTube, Google has developed and implemented filtering tools to identify and block infringing audio files (identifying the digital file), infringing soundtracks to videos (identifying the infringing audio content), and infringing video (identifying the actual images as infringing, not simply the digital file). These new technologies are highly innovative and are very valuable to a variety of industries. The implementation of these technologies has been incremental, however. Google should not be held to a current standard of available filtering technology for YouTube's early actions. The current case law, including Grokster, creates an incentive for technology companies to create new and innovative technologies. Holding companies to an absolute filtering standard based on the efficacy of future technologies will have a significantly detrimental effect on the technology economy and industry innovation.
IV. Copyright Owners Should Not Be Allowed to Violate Other Applicable Laws in Pursuit of Enforcing Their Copyrights
Viacom's actions in monitoring YouTube's website violate at least one federal statute, the Computer Fraud and Abuse Act. The Constitution does not give copyright owners a constitutional right, but rather grants Congress the power to enact laws regarding copyright. The Copyright Act and the Computer Fraud and Abuse Act are federal laws of equal stature. The Copyright Act does not authorize copyright owners to violate other federal statutes in enforcing their copyrights.
A. The Computer Fraud and Abuse Act Protections
1. Protects against accessing a computer without authorization or exceeding authorized access of computers and computer networks. 18 U.S.C. §1030.
2. Protects the confidentiality, integrity and security of computer data and networks. S. Rep. No. 104-357, at 4 (1996), reprinted at 1996 WL 492169.
B. YouTube Terms of Service
1. Terms of Service 4.C. You agree not to access User Submissions (defined below) or YouTube Content through any technology or means other than the video playback pages of the Website itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate. http://www.youtube.com/t/terms.
2. Terms of Service 4.D. You agree not to use the Website, including the YouTube Embeddable Player for any commercial use, without the prior written authorization of YouTube. Prohibited commercial uses include any of the following actions taken without YouTube's express approval: ... any use of the Website or its related services (such as the Embeddable player) that YouTube finds, in its sole discretion, to use YouTube's resources or User Submissions with the effect of competing with or displacing the market for YouTube, YouTube content, or its User Submissions. http://www.youtube.com/t/terms.
C. Viacom has violated the YouTube Terms of Service.
1. Viacom has accessed YouTube’s site using technology other than the video playback pages in its search for copyrighted materials, in violation of Terms of Service 4.C.
2. Viacom has used YouTube’s website for commercial purposes, without YouTube’s prior written authorization, in violation of Terms of Service 4.D.
D. Viacom is liable to YouTube under the Computer Fraud and Abuse Act for violating YouTube’s Terms of Service.
1. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 583 (1st Cir. 2001).
2. Register.com v. Verio, 126 F. Supp. 2d. 238 (S.D.N.Y. 2000).
E. Viacom has trespassed on YouTube's servers in violation of the CFAA. Publishers should be prevented from violating the rights of computer owners and users by accessing the websites of other technology sites in a similar manner.
1. Under the Computer Fraud and Abuse Act, computer owners and users are protected from access without authorization and exceeding authorized access. Such access violates the rights of computer owners and users by compromising the confidentiality, integrity and security of computer data and networks.
2. Viacom’s search for copyrighted materials is not a justification for violating a website’s terms of service. The Computer Fraud and Abuse Act does not provide defenses to access without authorization and exceeding authorized access. The Copyright Statute does not give copyright owners greater rights than the rights given to computer owners and users under the Computer Fraud and Abuse Act.
V. Appropriate applying fair use doctrine would encourage the innovation and protect the legal right of copyright owners
A. YouTube, along with other video hosting services, is ushering in a new era of free expression online. YouTube provides a home for "user-generated content" (UGC) on the Internet, enabling creators to reach a global audience without having to depend on traditional intermediaries like television networks and movie studios. This prompt, convenient new technology attracts ordinary people to upload their creative works so as to express themselves. To the extent that these works re-use and re-interpret copyrighted works, many are likely to fall within the scope of fair use.
B. The fair use doctrine embodies the purpose of the First Amendment which is to “maximize the dissemination of information.” It provides that the public not only can use the facts and ideas contained in a copyrighted work, but also the expression embodied in the work for certain purposes, such as criticism, comment, news reporting, teaching, and even of parody. In the light of the Section 107, to determine whether a particular use of a copyrighted work is fair use, four basic factors should be considered, which are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
C. It is not a simple matter to determine if a use of a copyrighted work is a fair use under the fair use doctrine. In this situation, videos uploaded to YouTube may appear on their face to be infringing works - works copyrighted and owned by Viacom and used without permission - but they may still be legal uses under the fair use doctrine. If YouTube removes transformative works protected by the fair use under the requirement of Viacom, it will impair the legitimate free speech rights of the creator of the posted work. Appropriate solutions should be developed with consideration of a particular case. Careful and appropriate application of the fair use doctrine can encourage innovation and preserve the balance between the rights of copyright owners and the free speech rights of YouTube users.
Amicus Curaie Brief of Technology Companies
5/22/2010
Silicon Valley Internet Coalition Team
Tonya Gisselberg
Jessie Kennedy
Brady Kriss
Koichi Kudo
Hyuna Min
Shingo Tsuchiya
Nai-Chung Wang
Wei Wu
I. The Technology at Issue Has Benefited Society by Providing a Platform for Communication, Creativity, and Innovation:
A. The Internet generally, and user-generated content sites in particular, provide an open forum where individuals can express points of view, share opinions and commentary, and generally engage with one another - to the benefit of society as a whole.
B. Computer and software technology has sparked the widespread distribution of “user-generated content” (UGC), which in turn promotes individual expression and creativity and provides a platform for emerging artists.
II. An Overly Expansive Application of the Copyright Law Would Stifle Creativity and Inhibit Innovation.
A. It is critical that the law continue to allow technology companies to innovate without fear that their otherwise socially valuable technologies will subject them to liability whenever misused by third parties to infringe copyright.
B. Legal Precedent:
1. In Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court recognized the value of technological innovation and articulated a test for copyright infringement that shielded technology companies from potential liability, even if their products could be and were used for some copyright infringement.
a. In Sony, the Supreme Court held that distribution of technology does not give rise to per se liability for copyright infringement where the technology is “capable of substantial noninfringing uses.” Id. at 442.
b. The “Substantial Noninfringing Use” Test has enabled the explosion of innovation, such that the Internet and digital technology are now a familiar aspect of the daily lives of most people.
c. If using a new technology is prohibited by Copyright Law, it would expand the scope of copyright monopolies to cover a commerce clause that is not the subject of copyright law.)
2. In MGM v. Grokster, 545 U.S. 913 (2005), the Court addressed the potential liability stemming from peer-to-peer file sharing technology:
a. The Inducement Rule: Grokster articulated the inducement theory of liability for copyright infringement: “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 919.
i. The rule bases liability on “purposeful culpable expression and conduct,” which in the Court’s view does “nothing to compromise legitimate commerce or discourage innovation having a lawful promise.” Id. at 937.
ii. The boundary of what constitutes “lawful promise” was not fully established in this case, although the Court viewed the following three pieces of evidence of Grokster’s intent to be notable:
1. Each company was aimed at satisfying a known demand for copyright infringement, i.e. filling the void left by Napster.
2. Neither company attempted to develop mechanisms to diminish the infringing activity using their software.
3. The company’s business model was based on selling advertising space, which in turn was based on the number of users, which the record showed were mostly infringing.
b. Distinguishing Sony: “[W]here evidence goes beyond a product’s characteristics or the knowledge the it may be put to infringing uses, and shows statement or actions directed to promoting infringement, Sony’s staple article rule will not preclude liability.” Id. at 935.
c. Viewpoint on Copyright and Innovation: The Supreme Court recognized the tension between “the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement,” and stated that the tension between the two values was the subject of the case. Id. at 928.
i. The Court emphasized that Sony left “breathing room for innovation and vigorous commerce.”Id. at 933.
ii. The Court nonetheless found the argument for imposing secondary liability in Grokster to be a powerful one, given the facts of active solicitation of infringing activity by the company.
C. The Digital Millenium Copyright Act ("DMCA")
1. The DMCA was designed to reduce uncertainty and facilitate the development of e-commerce, communications and technology. See. Br. of Amicus Curaie American Library Assoc. et. al., Case No. 1:07-cv-02103-LLS (summarizing the record of Congressional intent when enacting the DMCA). To achieve this aim, the DMCA includes a "Safe Harbor" limiting liability for Internet Service Providers ("ISPs") that host a forum for users to upload content, provided that the ISPs comply with certain preconditions. Four specific types of activities are eligible for the limitations on remedies provided by section 512 and YouTube could fall within one of those four categories - ‘information residing on system or networks at direction of users’(§512 (c)).
2. Actual or Apparent Knowledge (§512 (c)(1)(A))
To qualify for the section 512(c) safe harbor, ISPs are required to expeditiously remove infringing material once they have actual knowledge of infringing activity or are aware of facts or circumstances from which infringing activity is apparent.
Plaintiff must produce evidence that the service provider had knowledge of particular infringing material on its service, but declined to expeditiously remove it(§512 (c)(1)(A)(i)). It is not sufficient for the plaintiff to show a provider’s general awareness of infringement. Actual knowledge requirement could be satisfied when a service provider get an adequate notice of infringing activity from a copyright holder. Without such actual knowledge, plaintiff must prove the fact that a service provider is aware of facts or circumstances from which infringing activity is “apparent” (§512 (c)(1)(A)(ii)). Importantly, it is not required for a service provider to monitor its service or affirmatively seek facts indicating infringing activity. A service provider may not be charged with knowledge based on circumstances that it did not actually know about, but perhaps could have uncovered by more actively monitoring user activity. Therefore, the service provider must remove material on its own – without receiving a takedown notice – only where the infringement would be apparent from even a brief and casual viewing. If it is not obvious whether a material is appropriately authorized or not, or whether use of a copyrighted work is fair use or not, then it should not be considered that the service provider is aware of facts or circumstances from which infringing activity is apparent.
3. Direct Financial benefit (§512(c)(1)(B))
In Napster, the Ninth Circuit held that financial benefit exists where the availability of infringing material “acts as a ‘draw’ for customers. In Ellison v. Robertson, the Ninth Circuit held that directness of a financial benefit hinges on whether the infringing activity constitutes a draw for subscribers, not just an added benefit. However, the distinction between a “draw” and just an “added benefit” seems unclear and vague. Moreover, most service providers pursue profit and technically, there could be causation between infringement and some of the profit. Therefore, stricter standard is required especially where a service provider’s business model is the industry standard and there is no financial discrimination between noninfringing material and infringing material.
4. Right and Ability to control (§512(c)(1)(B))
The question of this provision is not whether the service provider has the right and ability to control its system, but rather, whether it has the right and ability to control the infringing activity. The Ninth Circuit has interpreted the ability-to-control standard to mean practical, not just theoretical ability. The Ninth Circuit affirmed a district court’s holding that Google lacked the practical ability to control infringing activity because its technology was incapable of comparing every image on the web to every copyrighted image in existence. Therefore, if a service provider has technical tool to compare just the title of the video and not the video content itself, it should be considered that the service provider has no right and ability to control infringing activity.
III. Strong Market Incentives Exist For Technology Companies to Comply With Existing Law to Protect Both Privacy and Copyright Rights.
A. Privacy issue
This case involves several issues. Since Youtube was asked for providing their customers’ personal information, I would like to talk about the privacy issue.
There are several Acts relevant to the privacy issue:
1. The Privacy Act (1974):
The Privacy Act of 1974, as amended at 5 U.S.C. 552a, protects records that can be retrieved by personal identifiers such as a name, social security number, or other identifying number or symbol. An individual is entitled to access to his or her records and to request correction of these records if applicable. The Privacy Act prohibits disclosure of these records without the written consent of the individual to whom the records pertain unless one of the twelve disclosure exceptions enumerated in the Act applies. However, The Privacy Act binds only Federal agencies, and covers only records in the possession and control of Federal agencies.
2. Family Educational Rights and Privacy Act (1974)
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
3. Rights to Financial Privacy Act (1978)
The Right to Financial Privacy Act (12 U.S.C. § 3401 et seq.), also known as the RFPA is a United States Act that gives the customers of financial institutions the right to some level of privacy from government searches. Before the Act was passed, the United States government did not have to tell customers that they were accessing their records, and customers did not have the right to prevent such actions.
4. Electronic Communications Privacy Act (1978)
The law was enacted in 1986 and covers various forms of wire and electronic communications. According to the U.S. Code, electronic communications "means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce." The law prevents government entities from requiring disclosure of electronic communications from a provider without proper procedure.
5. Video Privacy Protection Act (1988)
The Video Privacy Protection Act of 1988 (codified at 18 U.S.C. § 2710 (2002)) was passed in reaction to the disclosure of Supreme Court nominee Robert Bork's video rental records in a newspaper. The Act is not often invoked, but stands as one of the strongest protections of consumer privacy against a specific form of data collection. Generally, it prevents disclosure of personally identifiable rental records of "prerecorded video cassette tapes or similar audio visual material."
6. Children’s Online Privacy Protection Act
The act, effective April 21, 2000, applies to the online collection of personal information by persons or entities under U.S. jurisdiction from children under 13 years of age. It details what a website operator must include in a privacy policy, when and how to seek verifiable consent from a parent or guardian, and what responsibilities an operator has to protect children's privacy and safety online including restrictions on the marketing to those under 13.
Some of these Acts only bind to the government and none of them can be applied in the present case. The US government prefers a self-regulation Internet environment which means Congress will give ample space to companies to have their own privacy policy.
Accordingly, the “Framework for Global Electronic Commerce” report which was released by President Bill Clinton set forth that “In all commercial media, there is a constant tension between a desire by the public for privacy and a need for information about the viewing audience. Sometimes the tension is left to be resolved in the marketplace; governments have often mediated it through various data protection regulation. As the Web continues to mature as a commercial media, it is particularly prone to this dissonance due to its interactive nature. Users often wish to provide information so as to customize their experience without forfeiting all privacy. Services wish to oblige users, while also complying with disparate legislation across multiple countries”.
Thus, I think if we want to discuss the privacy issue in this case. The statues are helpless. Maybe we have to look into the Contract between customers and YouTube. I found the YouTube’s privacy policy terms as follows:
Information sharing
Google only shares personal information with other companies or individuals outside of Google in the following limited circumstances:
We have your consent. We require opt-in consent for the sharing of any sensitive personal information.
We provide such information to our subsidiaries, affiliated companies or other trusted businesses or persons for the purpose of processing personal information on our behalf. We require that these parties agree to process such information based on our instructions and in compliance with this Privacy Policy and any other appropriate confidentiality and security measures.
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against imminent harm to the rights, property or safety of Google, its users or the public as required or permitted by law.
If Google becomes involved in a merger, acquisition, or any form of sale of some or all of its assets, we will provide notice before personal information is transferred and becomes subject to a different privacy policy.
We may share with third parties certain pieces of aggregated, non-personal information, such as the number of users who searched for a particular term, for example, or how many users clicked on a particular advertisement. Such information does not identify you individually.
Please contact us at the address below for any additional questions about the management or use of personal data.
According to the contract, if the customers of YouTube are liable for copyright infringement, YouTube still cannot reject to provide their customers’ information by relying on privacy protection.
B. The holding in Grokster does not actually require that any particular steps be taken by an ISP to avoid infringement liability. However, Grokster was found to have induced infringement in part because they had not implemented any filtering technology. In the intervening years, technology companies, including Google and YouTube have been working to develop better technology to filter out infringing content. However, the development of such technology is not instant, but progresses over time. Since buying YouTube, Google has developed and implemented filtering tools to identify and block infringing audio files (identifying the digital file), infringing soundtracks to videos (identifying the infringing audio content), and infringing video (identifying the actual images as infringing, not simply the digital file). These new technologies are highly innovative and are very valuable to a variety of industries. The implementation of these technologies has been incremental, however. Google should not be held to a current standard of available filtering technology for YouTube's early actions. The current case law, including Grokster, creates an incentive for technology companies to create new and innovative technologies. Holding companies to an absolute filtering standard based on the efficacy of future technologies will have a significantly detrimental effect on the technology economy and industry innovation.
IV. Copyright Owners Should Not Be Allowed to Violate Other Applicable Laws in Pursuit of Enforcing Their Copyrights
Viacom's actions in monitoring YouTube's website violate at least one federal statute, the Computer Fraud and Abuse Act. The Constitution does not give copyright owners a constitutional right, but rather grants Congress the power to enact laws regarding copyright. The Copyright Act and the Computer Fraud and Abuse Act are federal laws of equal stature. The Copyright Act does not authorize copyright owners to violate other federal statutes in enforcing their copyrights.
A. The Computer Fraud and Abuse Act Protections
1. Protects against accessing a computer without authorization or exceeding authorized access of computers and computer networks. 18 U.S.C. §1030.
2. Protects the confidentiality, integrity and security of computer data and networks. S. Rep. No. 104-357, at 4 (1996), reprinted at 1996 WL 492169.
B. YouTube Terms of Service
1. Terms of Service 4.C. You agree not to access User Submissions (defined below) or YouTube Content through any technology or means other than the video playback pages of the Website itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate. http://www.youtube.com/t/terms.
2. Terms of Service 4.D. You agree not to use the Website, including the YouTube Embeddable Player for any commercial use, without the prior written authorization of YouTube. Prohibited commercial uses include any of the following actions taken without YouTube's express approval: ... any use of the Website or its related services (such as the Embeddable player) that YouTube finds, in its sole discretion, to use YouTube's resources or User Submissions with the effect of competing with or displacing the market for YouTube, YouTube content, or its User Submissions. http://www.youtube.com/t/terms.
C. Viacom has violated the YouTube Terms of Service.
1. Viacom has accessed YouTube’s site using technology other than the video playback pages in its search for copyrighted materials, in violation of Terms of Service 4.C.
2. Viacom has used YouTube’s website for commercial purposes, without YouTube’s prior written authorization, in violation of Terms of Service 4.D.
D. Viacom is liable to YouTube under the Computer Fraud and Abuse Act for violating YouTube’s Terms of Service.
1. EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 583 (1st Cir. 2001).
2. Register.com v. Verio, 126 F. Supp. 2d. 238 (S.D.N.Y. 2000).
E. Viacom has trespassed on YouTube's servers in violation of the CFAA. Publishers should be prevented from violating the rights of computer owners and users by accessing the websites of other technology sites in a similar manner.
1. Under the Computer Fraud and Abuse Act, computer owners and users are protected from access without authorization and exceeding authorized access. Such access violates the rights of computer owners and users by compromising the confidentiality, integrity and security of computer data and networks.
2. Viacom’s search for copyrighted materials is not a justification for violating a website’s terms of service. The Computer Fraud and Abuse Act does not provide defenses to access without authorization and exceeding authorized access. The Copyright Statute does not give copyright owners greater rights than the rights given to computer owners and users under the Computer Fraud and Abuse Act.
V. Appropriate applying fair use doctrine would encourage the innovation and protect the legal right of copyright owners
A. YouTube, along with other video hosting services, is ushering in a new era of free expression online. YouTube provides a home for "user-generated content" (UGC) on the Internet, enabling creators to reach a global audience without having to depend on traditional intermediaries like television networks and movie studios. This prompt, convenient new technology attracts ordinary people to upload their creative works so as to express themselves. To the extent that these works re-use and re-interpret copyrighted works, many are likely to fall within the scope of fair use.
B. The fair use doctrine embodies the purpose of the First Amendment which is to “maximize the dissemination of information.” It provides that the public not only can use the facts and ideas contained in a copyrighted work, but also the expression embodied in the work for certain purposes, such as criticism, comment, news reporting, teaching, and even of parody. In the light of the Section 107, to determine whether a particular use of a copyrighted work is fair use, four basic factors should be considered, which are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
C. It is not a simple matter to determine if a use of a copyrighted work is a fair use under the fair use doctrine. In this situation, videos uploaded to YouTube may appear on their face to be infringing works - works copyrighted and owned by Viacom and used without permission - but they may still be legal uses under the fair use doctrine. If YouTube removes transformative works protected by the fair use under the requirement of Viacom, it will impair the legitimate free speech rights of the creator of the posted work. Appropriate solutions should be developed with consideration of a particular case. Careful and appropriate application of the fair use doctrine can encourage innovation and preserve the balance between the rights of copyright owners and the free speech rights of YouTube users.
Sunday, May 23, 2010
S.D.N.Y. Rules for RIAA, Against LimeWire
In the first music piracy lawsuit since Grokster, the Southern District of New York ruled for the RIAA and against music downloading service LimeWire on May 11. In an order on cross-motions for summary judgment, the court found LimeWire and its founder liable for inducement of copyright infringement, common law copyright infringement, and unfair competition.
Saturday, May 22, 2010
Artists' Presentation for Monday 5/24
Here is a link to the slides for Monday's presentation on artists' points of view:
http://www.math.washington.edu/~asheshb/Artists%20Presentation.ppt.
http://www.math.washington.edu/~asheshb/Artists%20Presentation.ppt.
Wednesday, May 19, 2010
Sunday, May 16, 2010
Can Google Hide Under Safe Harbor Defense? - by Gyeong Ok Kim
Can Google Hide under Safe Harbor Defense?
The DMCA is an act to compromise new type of copyright infringement in the context of the Internet. Therefore, the DMCA was inherently tailored to the technology at the end of 1990ʼs.
According to the technology of that time, the Congress didnʼt have to worry about the mass copyright infringement because the speed of the Internet is too slow. As a result, the burden of policing copyright infringement was rested to copyright owners according to traditional theory that copyright owners are the one who well know infringement.
However, the current technology enables for ordinary people to copy otherʼs contents-music, movie, all kind of audio visual works- easily and rapidly. Therefore, policing those mass infringement become too burden to copyright owners.
In this situation, I agree with the opinion that the DMCA should be changed to impose more responsibility to the service providers by any means. Viacom v. Google case is on the peak of the discussion that in what extent the DMCA is revised.
According to evidences discovered so far, Google and Youtube look no longer hide under Safe Harbor defense.
However, the case has been just started, and no one can expect how long it takes. And there is a possibility that both parties may settle.
Therefore, I believe that the Congress should not look on this situation with folded arms. Rather, it is time for Congress to revise the DMCA to solve this chaos before itʼs too late.
by Gyeong Ok Kim
The DMCA is an act to compromise new type of copyright infringement in the context of the Internet. Therefore, the DMCA was inherently tailored to the technology at the end of 1990ʼs.
According to the technology of that time, the Congress didnʼt have to worry about the mass copyright infringement because the speed of the Internet is too slow. As a result, the burden of policing copyright infringement was rested to copyright owners according to traditional theory that copyright owners are the one who well know infringement.
However, the current technology enables for ordinary people to copy otherʼs contents-music, movie, all kind of audio visual works- easily and rapidly. Therefore, policing those mass infringement become too burden to copyright owners.
In this situation, I agree with the opinion that the DMCA should be changed to impose more responsibility to the service providers by any means. Viacom v. Google case is on the peak of the discussion that in what extent the DMCA is revised.
According to evidences discovered so far, Google and Youtube look no longer hide under Safe Harbor defense.
However, the case has been just started, and no one can expect how long it takes. And there is a possibility that both parties may settle.
Therefore, I believe that the Congress should not look on this situation with folded arms. Rather, it is time for Congress to revise the DMCA to solve this chaos before itʼs too late.
by Gyeong Ok Kim
Preparation for Class on Monday, May 17th
Greetings. I am sorry that I didn't post this earlier, but I was not able to access either our class blog or the blogspot website from China. I tried a number of times. Hmmm...
Tomorrow we will discuss content on the internet -- and the related challenges, opportunities, issues and options -- from the point of view of the creators of content -- particularly individual authors, artists, photographers, musicians, videographers and more.
There is no assigned reading, but you should review the following sites which will give you a flavor of some of the issues and competiting viewpoints:
http://www.rightsforartists.com/copyright
http://www.ppa.com/copyright-advocacy
http://keepyourcopyrights.org
http://creativecommons.org
I look forward to seeing you tomorrow.
Steve
Tomorrow we will discuss content on the internet -- and the related challenges, opportunities, issues and options -- from the point of view of the creators of content -- particularly individual authors, artists, photographers, musicians, videographers and more.
There is no assigned reading, but you should review the following sites which will give you a flavor of some of the issues and competiting viewpoints:
http://www.rightsforartists.com/copyright
http://www.ppa.com/copyright-advocacy
http://keepyourcopyrights.org
http://creativecommons.org
I look forward to seeing you tomorrow.
Steve
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