Critics of Comcast-NBC merger expect widespread consumer frustration if merger is approved

Haven’t seen your favorite Glee or House episode lately? Your regularly scheduled sports game not airing on FOX this week? This is what Cablevision customers have to deal with as the Fox-Cablevision retransmission dispute rolls on. While you might be hard pressed to find your friends discussing the dynamics of media company rate disputes, they sure as heck know when their favorite show isn’t on.

Cablevision subscribers are continuously frustrated as FOX and Cablevision remain in a stalemate over their dispute.  Many Americans will be feeling the same way if the Comcast- NBC merger is approved.  A recent NY Times article suggests that Comcast is looking to challenge ESPN if it’s proposed merger goes through. Comcast could block ESPN content entirely, or create a paywall where Comcast subscribers would have to pay for particular events and games.  Comcast subscribers would then be forced to watch Comcast’s sports channels.

To rub salt on consumers open wounds- News Corporation tried to cut Cablevision subscribers access to shows like House and Glee via Fox.com and Hulu. When Cablevision viewers attempted to find a second source for their beloved shows, many shows ended up being blacked out online and only offering a message that Fox shows were blocked from Hulu. This has never been done before and Fox was sending a message loud and clear, that consumers have to subscribe for the service providers that is willing to cough up Fox’s carrier rates.

DirecTV and the American Cable Association even echoed the concern of many media policy advocates, that the Fox-Cablevision dispute will have repercussions for the Comcast-NBC merger. DirecTV and the American Cable Association on Wednesday wrote FCC chairman Julius Genachowski saying: “Without appropriate safeguards, it is reasonable to assume that Comcast/NBCU would take similar action against non-Comcast broadband subscribers in the event of a dispute because it could increase its leverage in carriage negotiations and encourage subscriber defection to Comcast’s own video and broadband platforms,” the letter warned.

This long time dispute raised some reaction from the FCC when they wrote to the companies asking Fox and Cablevision to resolve their dispute.  The FCC still has done very little though to signal an intention to stop the long term effects of the Comcast-NBC merger or the root of the problem. In a letter to the dueling parties, the FCC writes, “Your contract dispute extends beyond just Fox and Cablevision,” it said. “It affects millions of innocent consumers who expect to watch their preferred broadcast programming without interruption. We urge you to place the interests of these consumers first and conclude your negotiations promptly.”

New Media Rights is concerned that there is plenty of evidence that the vertical integration of Comcast and NBC will stifle the success of independent creators who want to work with cable providers.  Indeed, if Fox versus Cablevision is a stalemate between giants, individual complaints from independent media would easily be steamrolled by unregulated Internet Access Providers.

Susan Crawford in her latest blog, “Sister Spat”, an excellent rundown of this retransmission case and it’s link to the merger, writes: “The media conglomerates need the tens of billions of dollars they get from the cable industry players, and the cable industry helps out by ensuring that there is almost no non-media-conglomerate programming made available.  Really, just about zero programming not owned in part by one of those five media companies comes across the cable distribution platform.”

We need all stand up for consumers and independent creators by fighting the merger.  Don’t be fooled, while Comcast would like media policy advocates and citizens to believe that they already have this merger in the bag, they don’t. We still have work to do.

To read more about why the Comcast-NBC merger matters, read Art Neill’s op-ed.


Update
: The specific retransmission dispute lasted over two weeks and both parties have signed an agreement. The dispute affected more than three million Cablevision customers and many are still frustrated.

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10 Tactics film screening inspires ideas for Drumbeat San Diego

The film 10 Tactics was screened for the first time in San Diego, California on October 25th, 2010. New Media Rights hosted the event at the local Joyce Beers Center. 10 Tactics is a film about how rights advocates have used digital technologies to turn information into action. To see the film online visit: http://www.informationactivism.org/

New Media Rights is a San Diego based non-profit that offers free legal assistance on topics of copyright and online publishing. We also offer a free public media studio for local creators to use.

Showing the 10 Tactics film and collaborating on Drumbeat San Diego projects are rooted in community building. San Diego, California is a very diverse community of people and many groups were represented at the 10 Tactics film screening. We had activists, web developers, media activists, holistic health practitioners, student activists and many others all in attendance to watch the film and feel empowered to become involved in Drumbeat San Diego.

Laura Lee Thompson, a local compassion advocate said that the movie came at a perfect time for her, when after a feeling burnt out on her activism she was ready to take a new approach, and integrate new media tools more. We heard this time and time again where people were inspired to utilize more digital technologies after viewing the film and were excited to get involved in our local initiative called Drumbeat San Diego.

Drumbeat San Diego will be an event held in January that will mix technologists, artists, community organizations and activists. These diverse communities will come together to build new media projects that benefit the community. One of the great projects is being facilitated by Jed Sundwall of Open San Diego and Lorie Hearn of the Watchdog Institute. Lorie presented the project after the film was shown. The idea behind the project is to obtain publicly available data sets and then have journalists work on writing articles that create a story around the data. One significant way that activists and other local community members could add to this particular project are identifying which data sets would be critical to the public being better informed.

Mera Szendro Bok, Communications and Information officer at New Media Rights emphasized that everyone in the room has skills that could benefit Drumbeat San Diego projects. Drumbeat San Diego projects need the contributions of citizens expressing community needs or getting involved in community outreach and buildup to the Drumbeat San Diego. Check out our How to get Involved page to see what areas of Drumbeat San Diego you would like to work with us on!

 

Lorie Hearn of the Watchdog Institute speaking

here on open data and journalism Drumbeat San Diego project

Mera Szendro Bok speaking on the opportunities available to get involved with Drumbeat San Diego

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San Diego artist and filmmaker Paul Giret creates art installation, TV Monster

Paul Giret's explanation of the project:

I built a TV Monster that stands 11 feet high and incorporates 15 TVs that are displayed in a cross like fashion and run off 8 DVD Players all playing 45 Minute psychedelic Mix Tapes that I created myself by downloading videos from the Internet and messing with them inside of Pinnacle Studio and burning them onto looping DVDs.
The TV Monster made it all the way up to the La Jolla Indian Reservation and stood all Three Days of the event, however, it shorted out after only 3 hours of playtime in a blaze of gray smoke due to a lack of power being provided to the Monster. 8 out of the 12 TVs are now toast, leaving me with a new game plan and 12 months to prepare more psychedelic mix tapes (as opposed to the 2 weeks i was given to prepare for this event) so I can make the TV MONSTER even better for the Next Burning Man Decompression.

The concept for the project was to take as many images and videos from the internet and throw them into an overwhelming video display in order to give the viewer the feeling of confusion. Too much going on at one time. I took many clips from popular sharing video websites and added visual effects to them. I also transposed like videos together.

Some videos were purposely sequenced together and others were put in a completely random order. All 8 DVDs were almost completely different so that no matter what screen you were watching, something different was on display.

 

Art's two cents: The "feeling of confusion" the TV Monster communicated relies on fair use under copyright law. In this case, the videos have been transformed for the purpose of the artist communicating confusion rather than their original entertainment value.

See Paul's video creations on his YouTube Channel

 

Attendees enjoying Paul's art project

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Sample Platform for Candidates Committed to an Open Internet

This is a sample platform for any candidates for Congress to show support for an open internet.  Demand your Congressional candidates support an open internet by asking them to adopt this sample platform on twitter, facebook, and through other social media.

 

(Candidate's name)'s platform on:

Keeping the Internet Open

 

(Candidate's name) recognizes the importance of keeping the internet open. It is essential that the open architecture of the internet remains, preserving the free choice, competition and innovation that have driven the Internet and made it so successful.

 

Net Neutrality would make large internet access providers (IAPs) follow basic standards to ensure Internet users’ access to content is not blocked or slowed down. Without minimal regulations, Internet Access Providers could control which internet users have access to the best services, as well as what applications internet users watch their videos through or hear music from.

 

(Candidate's name)'s concern is supported by the statements of Sir Tim Berners Lee, widely considered as the inventor of the world wide web, who also supports Net Neutrality. He warns:

"We assume that when we look up a web address and the domain name to get that page that you can get any page because that's how it's always been, a lot of companies would love to limit that. If they're trying to sell you movies streamed online, they'd like to slow down your access to other people's movies, so you'd come back to them. If they sell you telephone services, they'd love to block voice-over-internet connections, or just slow it down so you decide it's not a very good technology and go and use theirs instead. They'd like to tell you where to buy your shoes by slowing down the service to one site but not another."

As a supporter of Americans’ rights to free speech, (Candidate's name) wants to ensure your right to both view important content, as well as to use the internet as a tool for communicating with your fellow citizens. The internet is the most valuable communications medium of our time, and allows Americans to engage in a dialogue that is often not found on mainstream television and radio stations. IAP’s have already proven that they are not upholding constitutional rights of free speech by slowing or blocking transmission of particular content, and (Candidate's name) will make sure they can’t continue these practices.

 

The open architecture of the internet is essential to innovation and education in this country. According to the recent research (Strategy Analytics), America ranks 23rd in broadband development. This is based on five categories: household penetration, speed, affordability, value for money, and urbanicity. This is not good enough, and will demand we do better. The FCC must support an open web to improve Americans’ access to broadband and for us to remain a competitive force in the global market.

 

If elected as your congressional representative, (Candidate's name) will being a critical voice on the legislative framework that ensures an open internet, making sure that content and applications on the internet are available to the public.

 

Sources:

http://www.dslreports.com/shownews/US-Ranks-23rd-In-Broadband-Development-109529

http://markey.house.gov/index.php?option=com_issues&task=view_issue_leg&issue=8&Itemid=152

http://eshoo.house.gov/index.php?option=com_content&view=article&id=822:net-neutrality&catid=42:technology-a-innovation&Itemid=100026

http://eshoo.house.gov/index.php?option=com_content&task=view&id=412&Itemid=79

http://www.guardian.co.uk/technology/2010/sep/15/net-neutrality-tim-berners-lee

Congresspeople who support Net Neutrality: http://www.opencongress.org/bill/111-h3458/show

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Data portability policies to ensure and open and competitive internet - an idea whose time has come?

Data Portability

I recently shared the concept of developing data portability policies, standards, and best practices as a potential project for New Media Rights' Drumbeat San Diego event, and as project that could fit within Mozilla's larger Drumbeat initiative fostering projects that celebrate and ensure and open web.

A rough sketch of such a project is outlined below.

Please provide some feedback and let us know what you think about data portability in a comment below.

Data Portability on the Open Internet

This project begins with the concept that user choice, and user control over their experience, should remain a distinguishing feature of the open internet.

To maintain a healthy competition amongst online services heavily reliant on user-submitted data, it will become increasingly important to make sure user data is easily portable. This will help ensure that popular services make changes according to the interests of their users, and that new services can compete on the basis of their merits and usability, without artificial barriers to competition. Keeping data in the hands of users, rather than allowing confusing legal and technological techniques to lock upconsumer data, will help ensure an open and competitive internet.

The question is how to create a development environment that encourages data portability without applying onerous and excessively specific legal mandates on diverse applications and services.

This project will need legal and technical expertise, along with input from end users to understand the day-to-day needs of the end user.

The project could produce sample data portability policies based on the type of service or application, sets of best technological practices for service and application development, certifications based on meeting certain portability standards, a simplified badge system for websites to display their portability policies to users, etc.

Challenges

- balancing privacy and security concerns with portability concerns

- providing incentives for services to provide portability

- there are already large, established services with significant market shares in the areas of internet video, social networking, etc.

How do we ensure these services continue to respond to their users rather than simply exploit their overwhelming market share?

Questions

 - What are the requirements for everyday users regarding data portability?

- What organizations (academic, non-profit, for-profit, or otherwise) have expertise that could assist in such a project?

The idea stems from Jonathan Zittrain’s cursory discussion of the importance of data portability in his book, The Future of the Internet. I encourage you to visit the entire section that discusses data portability on page 176 for more background.

http://futureoftheinternet.org/static/ZittrainTheFutureoftheInternet.pdf

The book is licensed Creative Commons Attribution-Noncommercial-Sharealike.

Here are some excerpted ideas from Zittrain’s discussion that I think are relevant

“Maintaining the prospect that users can switch ensures that changes to wildly popular platforms and services are made according to the interests of their users. There has been ongoing debate about just how much of a problem lock-in can be with a technology...

Competition can be stymied when people find themselves compelled to retain one platform only because their data is trapped there...

Makers of tethered appliances and Web sites keeping customer data similarly ought to be asked to offer portability policies. These policies would declare whether they will allow users to extract their own data should they wish to move their activities from one appliance or Web site to another...

In some cases, the law could create a right of data portability, in addition to merely insisting on a clear statement of a site’s policies. Traditional software as product nearly always keeps its data files stored on the user’s PC in formats that third parties can access...

As we enter an era in which a photograph moves ephemerally from a camera’s shutter click straight to the photographer’s account at a proprietary storage Web site with no stop in between, it will be helpful to ensure that the photos taken can be returned fully to the custody of the photographer. Portability of data is a generative insurance policy to apply to individual data wherever it might be stored. A requirement to ensure portability need not be onerous. It could apply only to uniquely provided personal data such as photos and documents, and mandate only that such data ought to readily be extractable by the user in some standardized form. Maintaining data portability will help people pass back and forth between the generative and the non-generative, and, by permitting third-party backup, it will also help prevent a situation in which a non-generative service suddenly goes offline, with no recourse for those who have used the service to store their data...”

"Dominiek's Data Portability Icon" by flickr user dominiekth used under a Creative Commons Attribution 2.0 license

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Copyright Office decision supports cell phone jailbreaking, encourages educators and remixers

Regardless of how one feels about the Digital Millenium Copyright Act (DMCA) as a whole, it’s clear that the Copyright Office's recent rulemaking process has appropriately further limited the DMCA's anti-circumvention provision. In February 2009, New Media Rights submitted comments in support of these changes that have now been enacted.

The Office's ruling attempted to clarify the DMCA's prohibition on “circumventing” digital rights management (DRM) and “other technical protection measures” -- a prohibition that, up until now, has given Apple the theoretical right to intimidate iPhone users with “jailbroken” phones with legal action. The Office ruled that this jailbreaking does not constitute violation of the DMCA. Although Apple has never prosecuted any iPhone jailbreaker under the DMCA, Apple did strongly object to any exemption to the anti-circumvention rule. This has led many general interest news sources to label these recent exemptions as a victory specific to iPhone jailbreakers, but the benefits of this particular exception to the DMCA anti-circumvention prohibitions reach a broader class of cell phone users.

In addition to what these new exemptions mean to iPhone and cell phone users generally,  there are a variety of other just-as-important exceptions made that affect educators, video remix artists, video game modders, and the sight-impaired in more practical ways.

Although these exemptions do eliminate the possibility that Apple could prosecute jailbreakers under Copyright law, it does not change the fact that Apple may still disable jailbroken phones with software upgrades.

Owners of jailbroken phones also still run the risk of voiding their warranties. Apple may still have legal recourse against would-be jailbreakers: “The contract between the company and the user forbids jailbreaking. Violating that provision of the contract...would still constitute a breach of contract the company could enforce in court.”

To read the full rulemaking order:
https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf

Or to learn more information about the exemptions contact us or visit these links:
http://www.networkworld.com/community/blog/government-says-dmca-can’t-stop-jailbreaking-?source=NWWNLE_nlt_daily_pm_2010-07-26

http://news.cnet.com/8301-13578_3-20012109-38.html

Photo Credit: Jail by Gìpics

Photo Credit: Jailbreak Aftermath by Thanushyon

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Let the Wookie Win: A Short History of Star Wars Litigation

San Diego Comic Con has arrived again! Although New Media Rights provides assistance to creators and internet users nationally, we are firmly rooted in San Diego and supporting local San Diego arts and culture.

Every year, Comic Con brings Storm Troopers fraternizing with Bounty Hunters back to downtown San Diego, and grown women huddled up in Tauntaun sleeping bags back to the Convention Center’s hallways.

To celebrate Star Wars Day and Comic Con returning to San Diego, and to prove learning about the law can be fun (sometimes), we present to you a short history of Star Wars trademark litigation: two cases in which Lucasfilm took people to court over Star Wars and lost.

 


Star Wars versus Missile Defense

[ Lucasfilm Ltd. v. High Frontier, 622 F.Supp. 931 (D.D.C. 1985) ]

Today, when someone says “Star Wars” you naturally think of the movies, the cartoons, and the lightsaber toys with burning capabilities so powerful they can cause human skin to “burst into flame.” In the mid-1980s though, things may not have been as clear.

In 1983, Ronald Regan launched the Strategic Defense Initiative (SDI) program at the insistence of Lt. General Daniel O. Graham to research and develop a space-based system to defend the United States from nuclear missile attacks. General Graham’s organization, High Frontier, was the think tank that first proposed the idea of using impractical, expensive, cutting-edge technologies to shoot down missiles from space.

SDI researched technologies like space based lasers that could, theoretically, intercept and destroy approaching nuclear missiles. Practically, problems arose when SDI found that shooting a missile with a laser was about as complicated as deflecting a bullet by shooting it with another bullet. It’s even more complicated though, because the bullet SDI was trying to deflect would be shot -- without warning -- from the Soviet Union at 15,000 miles per hour, and the gun SDI intended to deflect the bullet with was in space.

Naturally, a project that experimented with everything from x-ray lasers, to hypervelocity rail guns, to neutral particle beams to shoot down nuclear missiles drew attention from the public. Critics, newspapers, and even General Graham’s High Frontier organization itself began referring to SDI as Star Wars.

For some reason, Lucasfilm took offense to the term Star Wars being used as short-hand for High Frontier’s space-based anti-missile lasers. In 1985, Lucasfilm sued High Frontier for “Trademark Infringement” in hopes that a court would stop the organization as well as deter others from using the name Star Wars when referring to SDI.

Though the court acknowledged that Lucasfilm was in an unfortunate position, the court concluded that trademark law wasn’t violated and High Frontier (and anyone else) had a right to use the term “Star Wars” to refer to space-lasers of any kind.

Trademark Law

Generally, when another organization uses a trademarked term (like Lucasfilm’s term Star Wars) in commerce without permission, then it is considered trademark infringement. Lucasfilm argued that when High Frontier used the term in television commercials supporting SDI, it did just that.

High Frontier and the court saw the situation differently. Trademark laws only prohibit the use of trademarked terms like Star Wars when it’s either placed on commercial products or used to promote someone’s services. Here, all High Frontier or anyone else was doing with the term was communicating the point of view that shooting lasers in space seemed a lot like Star Wars. As the court said, “When politicians, newspapers and the public generally use the phrase Star Wars for convenience, in parody or descriptively to further a communication of their views on SDI,” Lucasfilm has no right to stop them.

In Conclusion

Today, a national ballistic missile shield is still about as feasible as an X-Wing’s photon torpedoes or a Y-Wing’s ion cannons. Despite this, High Frontier still lobbies for the government to spend billions on missile defense when some of that money could be used  to defend against real threats, like Imperial Star Destroyers.



Star Wars versus Animated Porn

[ Lucasfilm, Ltd. v. Media Mkt. Group, Ltd., 182 F. Supp. 2d 897, 901 (N.D. Cal. 2002) ]

In the Kevin Smith movie, Zack and Miri Make a Porno, Seth Rogen toys with the idea of making a Star Wars themed adult film. In 2002, Media Marketing Group (MMG) actually produced and distributed an animated, x-rated movie called Star Ballz.

Although I’ve never seen it, the most positive review of Star Ballz on Amazon describes the movie like this: “It's crude, shoddily made, and full of groan-inducing sexual humor. I've seen worse, though.” Apparently Lucasfilm, the creators of Star Wars, hadn’t seen worse.

Lucasfilm sued MMG for copyright infringement, trademark infringement, and trademark dilution and asked the court to enjoin (stop) MMG from manufacturing or selling the movie.

The movie’s two minute G-rated trailer (which is described in the comments as better than the movie itself) takes elements of the original 1977 Star Wars movie and “parodies” them. Lightsabers become, “lightsabers that look like phalluses.” Stormtroopers become “Stormtroopers that look like phalluses.” Darth Vader becomes “Darth Vader with Mickey Mouse ears” oddly enough.

Though the line between parody and blatant cash-in is generally blurred in the real-world, in the eyes of the copyright/trademark law, reusing a movie’s characters to spoof them in pornography is generally protected. That’s why adult video producers have been parodying/cashing in on sci-fi for decades, most recently 2009’s “This Ain’t Star Trek XXX” series.

What sent Lucasfilm to the courthouse was likely the fact that the film was animated and featured children’s television characters (including Sailor Moon and Goku from the Dragon Ball cartoons). Lucasfilm alleged in its complaint to the court that Star Ballz could be marketed to and seen by children.

In January 2002, the court sided with MMG and allowed the company to continue to distribute Star Ballz. The court dismissed Lucasfilm’s copyright and trademark claims.

Lucasfilm’s Trademark Infringement Claim

Generally, trademark law exists to protect consumers from fraud or deception. If someone attempts to place another person’s more famous brand name on his product to trick people into buying his own product, then the owner of the famous name has a case for trademark infringement. Therefore, Lucasfilm’s argued that consumers would be confused by Star Ballz because the name was so confusingly similar to Star Wars and people might think that Lucasfilm actually produced or officially sponsored Star Ballz in some way.

The court disagreed, finding that reasonable consumers wouldn’t confuse a live-action, action-adventure film like Star Wars with an animated, adult film like Starballz. Furthermore, Star Wars and Star Ballz would rarely be sold in the same places so consumers would never see both on the same shelf and be tricked into buying Star Ballz.

Lucasfilm’s Trademark Dilution Claim

“Trademark dilution” occurs when a mark (like Star Ballz) would diminish the ability for a famous mark (like Star Wars) to distinguish itself regardless of whether consumer confusion is likely.  [See 15 U.S.C. § 1127.] Again, the court sided with MMG reasoning that parody is non-commercial use (even when sold as a DVD) and trademark law only governs commercial uses.

In Conclusion

The judge’s farsighted ruling in this case paved the way for subsequent Star Wars related adult movies including Private Gold 81: Porn Wars - Episode 1 and about a half-dozen other films with titles too inappropriate to publish. To this day, Star Wars porn remains a safe, legally-protected way to titillate nerds and separate them from the money they earn at their systems engineer jobs.

 

*all images are promotional images licensed by Lucasfilm for promotional use; therefore, some rights are reserved.

**screen capture from Star Ballz used under fair use principles

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New Media Rights FCC comments on Broadband Legal Framework and the "Third Way"

The following is our introduction, and the entire comments are attached below:

New Media Rights and Utility Consumers’ Action Network hereby submit comments (Commenters will be referred to from here forth as “NMR”)to the Notice of Inquiry (NOI) released June 17, 2010 regarding the proposed frameworks for broadband Internet service.

This inquiry into the framework for broadband internet regulation can have a critical impact on our nation’s media and communications future.  Any such inquiry should be approached with caution, and should be conducted as openly as possible with an emphasis on soliciting input from the diverse interests of the American public.  In the face of the recent Comcast decision correctly questioning the Commission’s tenuous reliance on its ancillary, title jurisdiction to regulate the internet, the Commission is right to consider what, if any, jurisdiction Congress as allowed it to exercise over broadband internet.  If the Commission proceeds to reclassify broadband intern under title II, there are numerous implications for consumer protection as well as the future of the internet as a communications technology.

NMR’s comments draw upon Utility Consumers’ Action Network and New Media Rights’ experience advocating for consumers of broadband internet, as well as in advocating for and defending the rights of diverse creators and speakers who depend on an open and innovative internet.  The FCC has a particular challenge in balancing the need for basic consumer protections with the need to avoid regulatory overreach to ensure an open and free internet. The NOI raises an array of inquiries, and NMR will provide comments on the following inquiries:

Discussion of concerns regarding content level regulation and its affect on the generativity of the internet as well as copyright regulation.

Classification of terrestrial wireless broadband services and its impact on Consumer Protection.

Legal and Procedural Considerations Regarding the “Third Way”

 

Read the full comments on our site here

 

Comments from a variety of organizations can be found at these links:

Media Access Project Files Comments for Public Interest and Social Justice Groups Calling for Direct FCC Regulation of Broadband Access

PK Third Way in NOI Comments

Future of Media Coaltion  Comments in the FCC's Broadband Legal Framework Proceedings  

Free Press Urges FCC to Restore Broadband Oversight Authority

 

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YouTube's victory over Viacom reinforces DMCA safe harbor protections for websites

By on

On June 23, Viacom's claim for $1 billion in damages was shot down when the District Court for the Southern District of New York found YouTube and its owner Google not liable for copyright infringement in a much-anticipated decision. The two corporate giants have been at it since 2007, when Viacom joined with other plaintiffs including Paramount Pictures and sued YouTube, claiming that the online video service was legally responsible for copyright infringement when users posted clips of copyrighted material, including The Daily Show and The Colbert Report, owned by plaintiffs.

YouTube argued that it qualified for protection under the DMCA's safe harbor provisions and could not be held liable.  District Judge Louis Stanton granted summary judgment in favor of YouTube, meaning the case didn’t even need to go to trial- Viacom will certainly appeal, but it's often tougher (though not impossible) for a party who has lost on summary judgment to later win on appeal.

The rest of this post will outline the major legal issues in the case and explain how aspects of the decision will affect online service providers and copyright owners.

YouTube Was Protected by the DMCA Safe Harbor

The court found that YouTube did qualify for protection under the DMCA safe harbor provision for Online Service Providers (17 U.S.C. § 512(c)). This provision protects "providers of online services" from secondary liability for copyright infringement by users as long as the OSP follows certain procedures, such as designating an agent to receive complaints and promptly removing infringing material.

First, the court determined that YouTube fit within the statute's definition of an OSP also and noted that users upload over 24 hours of new video to the site every minute of every day. Despite the huge volume of material on the site, YouTube still acted swiftly to remove allegedly infringing material from the site in accordance with DMCA takedown notice procedure. Generally, then, Youtube was much like the standard setting Veoh video service, in that it took the necessary affirmative steps to gain protection under the DMCA.

Did YouTube Have "Actual Knowledge" of Infringement?

A site cannot be protected by the DMCA if it had “actual knowledge” of infringement. Viacom claimed that YouTube had "actual knowledge" of infringing material and was "aware of facts or circumstances from which infringing activity [was] apparent, but failed to do anything about it." YouTube's prompt removal of infringing material plainly demonstrated that they did not fail to act, so this issue turned on the interpretation of "actual knowledge". The court considered two possible meanings: 1) a general awareness that infringements are occurring or, 2) actual and constructive knowledge of specific and identifiable individual infringements.

The court first looked to the legislative history of the DMCA to help interpret the phrases. After examining the language in the Senate and House Committee Reports, the court concluded that the "actual knowledge" and "facts or circumstances" describe knowledge of specific and identifiable infringements of particular items and that "[m]ere knowledge of prevalence of such an activity is not enough." This is very important for heavily user generated content websites, in that simple knowledge that users are making use of the service to engage in infringing activity is not enough to eliminate DMCA protections. It would go against the purpose of the DMCA safe harbors if it were the responsibility of the service provider to discover which particular user posting is infringing. Instead, this court reinforces that the burden of identifying allegedly infringing material rests on the copyright owner, who must notify the service provider of alleged infringing activity.

YouTube Isn't the New Napster

Case law also proved unhelpful to plaintiffs in this case. The differences between YouTube and peer-to-peer file sharing programs such as Napster and Grokster are too vast to apply the holdings of those cases here. Whereas Napster and Grokster were held legally responsible, in part due to lack of monitoring for users' infringement, YouTube designated a DMCA agent to receive copyright complaints and quickly removed infringing material. The DMCA specifically carves out protection for service providers like YouTube, even if they otherwise would be held liable as contributory infringers. The fact that in one day, YouTube was able to remove every single video of the 100,000 that Viacom alleged was infringing in one mass take-down notice was viewed by the court as an example of the efficiency of the DMCA notification regime.

The court also rejected Viacom's additional arguments, including that YouTube could not be entitled to safe harbor protection given under the DMCA to "infringement of copyright by reason of the storage at the direction of a user of material" on a service provider's system or network because the site's replication, transmission, and display of videos was not the same as "storage". The court correctly declined to apply such a narrow definition of the term "storage."

YouTube Acted Fast to Remove Infringing Material

Just as in similar cases against Veoh, this decision placed a lot of emphasis on the defendant's prompt removal of material in response to DMCA notices, which helped in avoiding liability. The continued concern here is for fair use and free speech online. The extra-judicial, out of the courtroom process continues to result in a lot of dolphins being caught in the tuna net, and a lot of bullying and bogus takedown letters being sent and respected, but it is the system we have under the DMCA. At the very least, the Youtube court’s interpretation of the DMCA maintains robust protections for our service providers who provide diverse forums for speech online.

For their part, Viacom and its supporters, including the RIAA, feel that this decision will discourage service providers from taking steps to minimize infringement. It is difficult to see how an opinion that praised the defendants' prompt removal of allegedly infringing material could cause the opposite to happen. That said, content owners retain a strong, outside the courtroom process for getting objectionable reuse of content removed from the internet.

Mostly, however, this ruling upholds the DMCA’s safe harbors as a tangible protection for online service providers and makes clear that it remains the responsibility of copyright owners to identify infringing material online and to notify OSP's, who will continue to best avoid liability by responding promptly to takedown notices. The decision is another victory for OSP's who follow the DMCA procedures closely, and who can now use YouTube as an example of how to ensure DMCA safe harbor protection in the future.

 

 

 

 

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An Introduction to Drumbeat San Diego: A Collaboration of Mozilla Foundation and New Media Rights

Our Mission Statement for Drumbeat San Diego:

This event arises from a realization of the value to our communities that emerges from technologies and information that anyone can use, learn from, or build upon. We want to celebrate and be part of promoting projects, technologies, and services that facilitate participation, allowing anyone to become involved and innovate. This event is one way that we can ensure the internet remains a decentralized, democratic space in which responsibility and control is spread among all users.

Your invite to collaborate with New Media Rights on a San Diego Drumbeat event:

New Media Rights has been working with the Mozilla Foundation's new Drumbeat initiative to envision an event that encourages participation in new media and web openness including Creative Commons and open source software. Drumbeat planning meeting

The event would highlight the ways in which the open Internet, as well as open technological and cultural standards (ie Creative Commons and Open Source licensing), serve as a democratizing force for citizens to speak, artists to share their creativity, and creators of all types to collaborate to improve our world.

The event would aim to bring together a variety of individuals who are interested in creating projects on site during the event and contribute that work to the growing Drumbeat projects. The event would be aimed to include not only software developers (coders), but particularly artists, filmmakers, musicians, citizen journalists, lawyers, and other groups dependent on an open Internet.

We are aiming to develop an event that reaches out to people who are, and as a result of this event, will be, experimenting, inventing, creating, and exploring new media. We seek your input to shape this event and to get individuals in San Diego involved in a meaningful and coordinated way.

While the basic concept of Drumbeat is very participatory (ie the focus is on circular discussions and actual working on projects rather than classroom setting), our event is an open slate and we'd like you to be part of laying the groundwork for what this event could be.

So far, Mozilla Drumbeat expects to have events in New York, Boston, San Diego (that's us!), San Francisco, Philadelphia, Columbus, Chicago, Seattle, Vancouver, and Montreal this year. They have already completed a Germany and Brazil event.

We are part of a global movement that is empowering communities to create new media projects to better the world we live in. We hope that you will be as excited about the opportunity to collaborate and develop idea on this as we are.

Please contact Mera at mera@newmediarights.org or by phone at (619) 591-8870 to learn more about the project and organizing !

 

Conference agenda pages : Please feel free comment and help build these

Drumbeat Project Submission Page

Drumbeat Workshop and Session ideas  !

1. Goal/Outcomes: vision

2. Required Elements

3. Attendee Profile

4. Logistics

5. Communications

6. Miscellaneous

Check out the San Diego Drumbeat Mozilla Wiki !

 

Drumbeat Sign-up

Please sign up in the below form and we will keep you updated on the New Media Rights Drumbeat Event :

    

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