Lori Bentley, IT Business Edge; Copyright Law Could Get Ugly If ACTA Is Adopted as Is: Lora Bentley spoke to Jim Burger, an intellectual property attorney in the Washington, D.C., offices of Dow Lohnes, about the proposed Anti Counterfeiting Trade Agreement and the impact it would have on the tech industry:
"Bentley: I've read that Internet service providers are concerned about the ACTA treaty, but I'm unclear what in particular they don't like about it. Is it the secondary liability provision?
Burger: Device manufacturers are more concerned about secondary liability than ISPs. The ISPs are primarily concerned about secondary liability where the search engines are concerned. The ISPs are primarily concerned about the safe harbor issue - the section 512 issue.
Generally in their space, the Digital Millennium Copyright Act, which was a very carefully negotiated piece of legislation, gives them a safe harbor for users posting [copyrighted] material on their websites. So their concern, on a macro level, is that the DMCA was a very hard-fought battle. Almost every word mattered. In the ACTA treaty, they have a Reader's Digest version of [the safe harbor provision]. It gives them great concern because liability is huge.
Couple that with a provision in the enforcement section that says, essentially, countries will have predetermined damages. In the United States, it's potentially $150,000 maximum per infringing title, which is significant. For example, in the Viacom YouTube case, Viacom is alleging 100,000 titles. Multiply 100,000 by $150,000 and that's real money even for Google. So that's the problem the ISPs have in a nutshell."
http://www.itbusinessedge.com/cm/community/features/interviews/blog/copyright-law-could-get-ugly-if-acta-is-adopted-as-is/?cs=41213
Showing posts with label secondary liability. Show all posts
Showing posts with label secondary liability. Show all posts
Wednesday, May 19, 2010
Sunday, April 25, 2010
Tech Companies Fear Implications of Trade Pact; New York Times, 4/20/10
Associated Press via New York Times; Tech Companies Fear Implications of Trade Pact:
"Companies across the technology industry -- from Internet access providers to social networking sites to video-sharing services -- are bracing for this week's release of a draft of a trade agreement that they fear could undermine all sorts of online activities.
The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.
''If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,'' said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. ''They will have to exercise really tight control.''
The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement, or ACTA, in the fall of 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.
Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft -- such as China and Indonesia -- are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland and Australia.
The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won't be released until Wednesday -- even though last week's talks in New Zealand marked the eighth round of negotiations. The next round will take place in Switzerland in June.
Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.
''Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,'' Geist said.
Many technology companies fear that ACTA could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act. The current U.S. legal framework includes important protections for Internet service providers and other technology companies when their users are accused of copyright infringement. Although current law requires companies to remove infringing content, it limits their liability.
Most big technology companies are hesitant to comment on the record about ACTA until they see an official draft, but privately they say that immunity is critical not just for Internet service providers such as AT&T Inc. and Verizon Communications Inc., but also for any online company that hosts user-generated content. That includes social networking sites such as Facebook, video-sharing sites such as Google Inc.'s YouTube and even the online encyclopedia Wikipedia.
The darkest fear of the technology companies is that ACTA contains provisions that would require them to cut off access to users who violate copyright protections and possibly would hold the companies liable for violations.
The dangers of such ''secondary liability'' were underscored by a recent court ruling in Italy, which held three Google executives criminally responsible for hosting an online video of an autistic teenager being bullied, said Sohn of the Center for Democracy & Technology.
Sohn also said he worries that the trade agreement will exclude another ''safeguard'' in U.S. law -- the ''fair use'' doctrine, which allows limited use of copyright-protected material for commentary, criticism, research, teaching and news reporting.
''While this is being characterized as an anti-counterfeiting agreement, it is really a copyright deal with rules that will affect the daily lives of millions of people both online and in the digital realm,'' Geist said.
ACTA skeptics aren't only worried that it will bring more-restrictive rules to the U.S. Sherwin Siy, deputy legal director for Public Knowledge, another public interest group, fears that ACTA could also export strict, punitive copyright enforcement measures that exist in U.S. law to other countries. That could include high statutory damage awards, he said.
To be sure, ACTA has plenty of defenders. In November, a long list of media companies and trade groups, including the Motion Picture Association of America and the Recording Industry Association of America, sent a letter to Congress expressing support for the agreement.
ACTA, they wrote, has the potential to ''preserve high value American jobs, and create new ones'' and ''buttress our country's leading position in the creation, publishing and distribution of software, video games, films, music, books, television programs, journals, visual materials and other works protected by copyright.''
The office of the U.S. Trade Representative, which is negotiating ACTA on behalf of the U.S., said in a statement that it is working to implement ''President Obama's commitment to aggressively protect American intellectual property overseas'' and is ''respecting the balance struck by the U.S. Congress on these issues.''
The trade representative added that secondary liability for copyright infringement already exists in U.S. and foreign laws. ACTA, it hopes, would ''protect Internet intermediaries from secondary liability if they play by the rules.''"
http://www.nytimes.com/aponline/2010/04/20/business/AP-US-TEC-Copyright-Trade-Agreement.html?_r=1&scp=1&sq=acta&st=cse
"Companies across the technology industry -- from Internet access providers to social networking sites to video-sharing services -- are bracing for this week's release of a draft of a trade agreement that they fear could undermine all sorts of online activities.
The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.
''If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,'' said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. ''They will have to exercise really tight control.''
The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement, or ACTA, in the fall of 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.
Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft -- such as China and Indonesia -- are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland and Australia.
The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won't be released until Wednesday -- even though last week's talks in New Zealand marked the eighth round of negotiations. The next round will take place in Switzerland in June.
Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.
''Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,'' Geist said.
Many technology companies fear that ACTA could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act. The current U.S. legal framework includes important protections for Internet service providers and other technology companies when their users are accused of copyright infringement. Although current law requires companies to remove infringing content, it limits their liability.
Most big technology companies are hesitant to comment on the record about ACTA until they see an official draft, but privately they say that immunity is critical not just for Internet service providers such as AT&T Inc. and Verizon Communications Inc., but also for any online company that hosts user-generated content. That includes social networking sites such as Facebook, video-sharing sites such as Google Inc.'s YouTube and even the online encyclopedia Wikipedia.
The darkest fear of the technology companies is that ACTA contains provisions that would require them to cut off access to users who violate copyright protections and possibly would hold the companies liable for violations.
The dangers of such ''secondary liability'' were underscored by a recent court ruling in Italy, which held three Google executives criminally responsible for hosting an online video of an autistic teenager being bullied, said Sohn of the Center for Democracy & Technology.
Sohn also said he worries that the trade agreement will exclude another ''safeguard'' in U.S. law -- the ''fair use'' doctrine, which allows limited use of copyright-protected material for commentary, criticism, research, teaching and news reporting.
''While this is being characterized as an anti-counterfeiting agreement, it is really a copyright deal with rules that will affect the daily lives of millions of people both online and in the digital realm,'' Geist said.
ACTA skeptics aren't only worried that it will bring more-restrictive rules to the U.S. Sherwin Siy, deputy legal director for Public Knowledge, another public interest group, fears that ACTA could also export strict, punitive copyright enforcement measures that exist in U.S. law to other countries. That could include high statutory damage awards, he said.
To be sure, ACTA has plenty of defenders. In November, a long list of media companies and trade groups, including the Motion Picture Association of America and the Recording Industry Association of America, sent a letter to Congress expressing support for the agreement.
ACTA, they wrote, has the potential to ''preserve high value American jobs, and create new ones'' and ''buttress our country's leading position in the creation, publishing and distribution of software, video games, films, music, books, television programs, journals, visual materials and other works protected by copyright.''
The office of the U.S. Trade Representative, which is negotiating ACTA on behalf of the U.S., said in a statement that it is working to implement ''President Obama's commitment to aggressively protect American intellectual property overseas'' and is ''respecting the balance struck by the U.S. Congress on these issues.''
The trade representative added that secondary liability for copyright infringement already exists in U.S. and foreign laws. ACTA, it hopes, would ''protect Internet intermediaries from secondary liability if they play by the rules.''"
http://www.nytimes.com/aponline/2010/04/20/business/AP-US-TEC-Copyright-Trade-Agreement.html?_r=1&scp=1&sq=acta&st=cse
Saturday, March 6, 2010
Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation; TechDirt, 3/2/10
Mike Masnick, TechDirt; Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation:
"Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.
Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig's presentations, that he just posted -- a "chat" he had done for the OpenVideoAlliance a week or so ago, about open culture and fair use, has received notice that it has been silenced. It hasn't been taken down entirely -- but the entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there's a notification somewhere that the audio has been disabled because of "an audio track that has not been authorized by WMG" (Warner Music Group) -- which would be the same company whose copyright caused the issue a year ago -- but I haven't seen or heard that particular message anywhere.
However, Lessig is now required to fill out a counternotice challenging the takedown -- while silencing his video in the meantime:
While you can still see the video on YouTube, without the audio, it's pretty much worthless. Thankfully, the actual video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two separate videos -- both of which clearly are fair use -- neutered due to bogus copyright infringement risks suggests a serious problem. I'm guessing that, once again, this video was likely caught by the fingerprinting, rather than a direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules are.
Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.
This is backwards.
We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas -- not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.
Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, you have someone who knows what happened, and knows how to file a counternotice -- though, who knows how long it will take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the wider audience in favor of a few large companies.
The system is broken. When even the calls to fix the system are silenced by copyright claims, isn't it time that we fixed the system?"
http://techdirt.com/articles/20100302/0354498358.shtml
"Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.
Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig's presentations, that he just posted -- a "chat" he had done for the OpenVideoAlliance a week or so ago, about open culture and fair use, has received notice that it has been silenced. It hasn't been taken down entirely -- but the entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there's a notification somewhere that the audio has been disabled because of "an audio track that has not been authorized by WMG" (Warner Music Group) -- which would be the same company whose copyright caused the issue a year ago -- but I haven't seen or heard that particular message anywhere.
However, Lessig is now required to fill out a counternotice challenging the takedown -- while silencing his video in the meantime:
While you can still see the video on YouTube, without the audio, it's pretty much worthless. Thankfully, the actual video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two separate videos -- both of which clearly are fair use -- neutered due to bogus copyright infringement risks suggests a serious problem. I'm guessing that, once again, this video was likely caught by the fingerprinting, rather than a direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules are.
Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.
This is backwards.
We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas -- not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.
Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, you have someone who knows what happened, and knows how to file a counternotice -- though, who knows how long it will take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the wider audience in favor of a few large companies.
The system is broken. When even the calls to fix the system are silenced by copyright claims, isn't it time that we fixed the system?"
http://techdirt.com/articles/20100302/0354498358.shtml
Subscribe to:
Posts (Atom)