Enforcing the DMCA on the Web: What's Working, What's Next?

on March 27, 2008 1:54 PM | Permalink | Comments (206) | TrackBacks (0)

Another artfully moderated Steve Wildstrom panel.

L-R: Jim Davis (CIO, UCLA), Zahavah Levine (Chief Counsel, Youtube), Vance Ikezoye (CEO, Audible Magic), Jim Williams (SVP/CTO, MPAA)

This panel on the DMCA looked to be an angry one, but turned out to be pretty civil.

Interesting fact, YouTube has proprietary technology for identifying copyrighted works.

Everyone seemed to agree that on the whole, the DMCA has been good, but the trend towards "pre-litigation litgation" has been frustrating, but irrelevant from a consumer standpoint. Interestingly, it has pulled Universities (as ISPs) into the middle, but allowed them to influence a new aspect of education on copyrights and IP.

Wildstrom brought up the anti-circumvention rules, and noted that as a consumer, if he buys a DVD, he wants to watch it how he wants to (not reproduce it), and mentioned the common law right of first sale. If he wants to watch a DVD on his MacBook Air without an optical drive, how can he do that without breaking the DMCA?

Jim Williams from the MPAA said that the problem wasn't DRM or DMCA, but the lack of foresight on the part of those who created the DVD standard over ten years ago. He pointed out that Blu-Ray's encryption (AACS) lets you make "managed copies" and should fix this problem.

DMCA is ten years old. Wildstrom asked what the panel would change in copyright law.

Levine (YouTube) would allow for easier grants of blanket licenses on a mass scale due to the structure of the music rights in the U.S. You need recording rights, the composition rights which is almost impossible and the way the publishing industry developed (performing versus reproducing versus distributing). She noted that a webcaster needs a license for the streamed copy, publishing rights, and a performance license for the streaming. There is also no database of who owns what music. In contrast, Radio broadcasters have compulsory licenses for mechanical royalties, and zero performance royalties. Levine thinks compulsory licenses would be a good idea, and let more musicians get paid.

Williams (MPAA) said they don't want any more compulsory licenses and want to roll back a few by systems by which people can do business depending on the content. He'd also like to see more legal incentive for ISPs to do more about "massive, large-scale infringement" and seemed to call out Jim Davis from UCLA, asking how much of his network was used for P2P sharing. He also claimed that if you filter out copyrighted works, almost all P2P network traffic disappears, and the internet is "clogged with stolen goods....with free riders that are hogging bandwidth and taking it away from legitimate consumers." He also appeared to criticize Richard Lynch from Verizon for screening out Child Porn but not policing P2P traffic for infringing content, and called for ISPs to "unclog the internet." When I challenged him on this comparison, he backed up and said that there were good uses for P2P, and efforts should be made to stop the illegal uses. I'm not sure that I was entirely fair because the issue is one that got me rather annoyed, and my question may have been a bit too pointed (I quoted Joseph Welch. Maybe that was a bit over the line.) Mr Williams later asked if we could speak later on the subject, and I agreed because I want to be fair, so we should have an interview with him up soon. He was very eager to get his message across, and I suspect that we'll have a much more productive conversation outside of a "sound-byte" environment.

Wildstrom noted that many TV shows can't get onto DVD because of problems with music rights (I want the Wonder Years! Now!). This is a problem, and he noted that only a tiny fraction of movies are available because of this. He said that "less would get stolen if more were available legally." Applause line.

With regard to the TV Music problem, after Wildstrom pointed out that rights to a ton of music from the 60's is still in litigation, Vance Ikezoye from Audible Magic chimed in and said that there are efforts in place to develop technology to create and maintain a database of rights ownership, since records of publishing rights are scattered to the winds.

Jim Davis added that a reason that many Universities don't block content is because they can educate rather than enforce, and that a lot of P2P content is both legal and useful. Ms. Levine pointed out that after they remove videos they get lots of angry users who don't understand copyright law, and that citizens aren't being trained in copyright law in a social media age. With their filtering technology, they don't use it to just block videos blindly, because they need to collaborate with content owners to find out who owns what and what rights the owners will give users. Many users of their identification technology let them monetize their content, not blocking it. Very cool, and very Web 2.0

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206 Comments

By Arborlaw

on May 19, 2008 3:53 PM

By the "pre-litigation litigation," do you mean copyright cease-and-desist and takedown letters? It seems to me that there is at least an indirect consumer effect. Some of my web legal clients used to host forums where users could post content, and would post infringing content which wasn't theirs to post. At one point one client was getting about ten takedown letters a day. The forum, which was popular, had to be removed for copyright violations because the client couldn't keep up with taking down the allegedly infringing material and giving notice to the contributors as required under the DMCA. It seems to me that large businesses like YouTube, universities etc. have to build dealing with copyright violations into their model, and small businesses can't afford to.

Carol Shepherd
Arborlaw PLC

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