T Bone Burnett takes aim at DCMA safe harbours

T Bone Burnett by Kulturvultur (2007)

Congress enacted the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago, aiming to provide a  balance between the needs of content creators, who were struggling to protect their intellectual property in the digital age, and fledgling Internet companies, who feared being held liable for the misdeeds of  their customers - giving the technnology companies the benefit of 'safe arbour' protection provided service providers “reasonably implement” a policy that provides for the termination of “repeat infringers” in “appropriate circumstances.”
But is that balance right? 

Singer, songwriter and producer T Bone Burnett has delivered a telling contribution to the US Copyright Office's review of Digital Millennium Act 'safe harbour' provisions in the USA, saying in a video that whilst the law that was supposed to "balance the internet's openness with creators' ability to earn a living wage from their work  ..... [T]hose safe harbours have failed".

"The problems are familiar", he adds. "[And] they are well described in the record of these proceedings, from the broken Sisyphus climb of 'notice and takedown' to the gunpoint negotiations and pittance wages forced upon creators by the Google monopoly. The Big Tech ITOPIANS can track us across dozens of networks, devices and profiles to bombard us with micro-targeted ads, but they can't even identify unauthorised copies of our work and keep them off their own servers and systems. Or they won't".

"The problem here isn't technology", T Bone adds, saying "Creators welcome the digital revolution and its power to connect, amplify, and inspire. A modern recording studio looks more like a cockpit than a honky tonk, and that's just fine. The problem is business models - designed to scrape away value rather than fuel new creation, focused on taking rather than making. To restore technology's place as the rightful partner of tomorrow's creators, we need change".

"The safe harbours must be restored - so only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators' work. Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception. Creators must be given meaningful tools to earn a living from their art". 

"The false prophets of the internet may have imagined an egalitarian open source creative wonderland - but what we got was a digital playground for a handful of mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online".

"It's time for Congress to close the loopholes in section 512 of the DMCA. Our culture is at stake. And it's time for musicians to join with us, the Content Creators Coalition, to make that happen. Your career depends on it. On behalf of music creators, thank you to the Copyright Office for this proceeding and for considering these views".

On the same matter, the recent decision of the Second Circuit Court of Appeals  in the MP3tunes case is of interest: the Second Circuit noted that copyright infringement is a strict liability offence with no requirement to prove unlawful intent. Moreover, both uploading and downloading can constitute infringement. Because the DMCA does not define “repeat infringer,” the court adopted this ordinary meaning and held that “all it [takes] to be a ‘repeat infringer’ [is] to repeatedly [upload or download] copyrighted material for personal use.”

The Second Circuit also found that MP3tunes’ repeat infringer policy was not reasonable as a matter of law because, whilst the site did respond to takedown notices from copyright owners and terminated the accounts of some users, “MP3tunes did not even try to connect known infringing activity of which it became aware through takedown notices to users who repeatedly sideloaded files and created links to that infringing content in the sideload.com index.”

http://www.billboard.com/articles/business/7694396/t-bone-burnett-scathing-message-copyright-office-urging-reform

http://www.mondaq.com/unitedstates/x/569116/Copyright/Second+Circuit+Clarifies+Repeat+Infringer+Policy+Requirement+for+DMCA+Copyright+Safe+Harbors

Image:  Kulturvultur

BitTorrent file-sharing website isoHunt "induces" copyright infringement

The US Court of Appeal for the 9th Circuit (California) unanimously ruled yesterday that Gary Fung, the Canadian owner of BitTorrent website isoHunt, had "induced" users to download and distribute films and TV programmes, and that he could not rely on the DMCA safe harbor provisions for protection.

Various film studios alleged that isohunt.com and related websites, all run by Fung, induced third parties to download infringing copies of the studios' works. The websites were all BitTorrent sites which enabled file sharing and IsoHunt, Fung's "flagship" site, went a step further by modifying torrent files to make them more reliable than when they were uploaded to the site. IsoHunt also hosted a forum where users could post comments; Fung would post comments and also moderated the forum.

The Court of Appeal affirmed the District Court's decision on liability, confirming that Fung had induced users to illegally download and distribute content and that the safe harbor provisions set out in the DCMA offered no protection.

Two types of supporting evidence corroborated the conclusion that Fung "acted with a purpose to cause copyright violations": first, Fung took no steps "to develop filtering tools or other mechanisms to diminish the infringing activity" by those using his services. Second, Fung generated revenue almost exclusively by selling advertising space on his websites.

As regards whether Fung could make use of the safe harbor provisions, the Ninth Circuit was clear that it would be difficult for any defendant who induces copyright infringement to rely on safe harbor. It went on to say that Fung was ineligible because:

1. He had "red flag knowledge" of the infringement. Red flag knowledge turns on whether a website provider is subjectively aware of facts that would have made the infringement "objectively" obvious to a reasonable person  The court found that films and TV shows were "sufficiently current and well-known that it would have been objectively obvious to a reasonable person that the material solicited and assisted was both copyrighted and not licensed to random members of the public, and that the induced use was therefore infringing."

2. Fung profited from the infringement through advertising while having the "right and ability to control" infringing activity occurring through the various websites.

The case will now go back to the District Court for a decision on damages and to finalise the injunction.

The decision is not surprising. Henry Hoberman, Senior Executive Vice President and Global General Counsel for the Motion Picture Association of America (MPAA) has said:
"This ruling affirms a core principle of copyright law: those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions. It also strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit."

However, according to Advanced Television, despite the injunction, isoHunt.com will continue to operate through private servers in Canada and it is the fourth most popular BitTorrent site on the Internet.

The decision is available here.

Mere conduits? Dumb Pipes? Think again ...

I have blogged before about how the notion of Internet Service Providers as ‘mere conduits’ or ‘dumb pipes’ is fast becoming an irrelevant concept as the digital age advances: If Google can ‘see’ what you are emailing or accessing online and target (contextual) advertising at you, it hardly can say it’s just a dumb pipe – in fact some see what it does it as a gross invasion of privacy and even ‘wiretapping’. Which is double frustrating when rights owners are faced with the ‘safe harbour’ argument - that there is nothing that ISPs and sites like Google and YouTube can do about infringing content until they receive a take down notice. And even then it’s hard work!  But all within the DCMA!


Now Verizon has filed a brief with the USA Court of Appeals for the District of Columbia  Circuit (Verizon v FCC) to enable the ISP to give Internet access and search results according to what it decided was a "priority" – in effect your ISP would intervene in your searches and "pick favourites" -  giving Verizon the"freedom" to edit your Internet. It's doing this by challenging the FCC saying "This appeal challenges the FCC’s second attempt to conjure role for itself with respect to regulation of the Internet—in particular, broadband Internet access. 


For what Google is up to see here 


And more on Verizon here 


And the law suit here

Links and repeat infringers: what's the Flava of liability?

Is this sufficient
to stop repeat infringers?

An interesting case concerning §512 DMCA safe harbors is currently pending before the US Court of Appeals for the Seventh Circuit, this being Flava Works v Gunter.

Flava is a company which produces and distributes adult entertainment products, including DVDs and streaming videos. It considers itself to be the best source of gay erotica featuring black and latino men, writes The Hollywood Reporter.

In 2010, the company started proceedings before the US District Court for the Northern District of Illinois Eastern Division, claiming copyright and trade mark infringements. The defendants were Marques Rondale Gunter -- who created, owns and operates a website called myVidster.com, a social video bookmarking site -- and 26 Doe users of myVidster's services.

ISPs should carry out thorough
and most professional investigations
to escape liability

In particular, as reported by TorrentFreak, Flava alleged that Gunter had failed to police his site correctly for infringement. Although Flava did not deny that Gunter had responded to specific takedown requests, this had done nothing to stop a sample of 26 repeat infringers who kept reposting embedded links to infringing contents on myVidster.

In July 2011, US District Judge John Grady upheld the contributory infringement claims and granted a preliminary injunction against myVidster. The judge found that, although Gunter removed videos from myVidster which are listed in DMCA notices, he went no further:

"Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection. It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers."

The injunction was confirmed in September 2011, referring a contrario  to Ninth Circuit's 2007 seminal decision in Perfect 10 v Amazon and the "server test" envisaged therein. As explained by the US District Court for the Central District of California, 

"under the server test, someone could create a website entitled “Infringing Content For All!” with thousands of in-line links to images on other websites that serve infringing content. That website, however, would be immune from claims of direct infringement because it does not actually serve the images."

Judge Grady's ruling was appealed up to the Seventh Circuit, where it has attracted considerable interest and is now to be decided.

Last November the Electronic Frontier Foundation (EFF) and Public Knowledge filed their amicus brief, and were later joined by Google, Facebook and, most recently, by the Motion Pictures Association of America (MPAA). In their amicus brief the EFF and Public Knowledge argue that the District Court "failed to heed direction from the Supreme Court[’s decision in eBay v MercExchange] with regard to a fair injunctive relief and muddied the law surrounding the crucial safe harbor provisions of 17 U.S.C. §512(i)." In particular, the District Court ordered Gunter "to police its site and, by filtering and removing certain content, create prior restraints on user-generated content that may not infringe [Flava]'s (or anyone's) copyrights."

Similarly, a joint brief by Google and Facebook stresses that, while linking can never be direct copyright infringement, it can be potentially contributory or vicarious copyright infringement under some circumstances. In particular, Google and Facebook assert, if Flava can show that 

"myVidster or its users had knowledge of infringement and that their activities were intended to materially contribute to that infringement, myVidster or its users could potentially be liable as contributory infringers. If Flava Works can show that myVidster or its users had the rights and ability to supervise the particular infringing performances and also had a direct financial interest in those performances, myVidster or its users could potentially be liable as vicarious infringers. But one cannot simply say, as the court below did, that myVidster must be enjoined because there has been infringement by someone, somewhere, that was facilitated by the operation of the myVidster website."

Fairly different is the tone of the MPAA's amicus brief, which was submitted on 4 April last. In particular, claims the MPAA, 

"myVidster knew of the direct infringement. Flava notified myVidster of the infringing links as well as "tags" consisting of Flava's trademarks and frequently used by myVidster's customers to mark videos owned by Flava. Rather than discouraging infringement, however, myVidster advertised the availability of infringing material, including mainstream motion pictures; and willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified. The district court also correctly concluded that myVidster contributed to the direct infringement by failing to disable or block embedded links to infringing video streams."

The decision of the Court of Appeals is keenly awaited, not only on account of recent developments (see the Viacom/YouTube saga), but also because it promises to have relevant consequences as to the degree of due diligence ISPs are required to exert to avoid liability for infringing activities carried out by third parties.