[Parminder Jeet Singh, IP Watch, Link (CC-BY-NC-SA) The World Wide Web today stands at a crossroads, as its standards body, the World Wide Web Consortium (W3C), considers the demand of big content providers to provide them with the facility to be able to control user devices for ensuring that their content is not copied. This facility is called the Encrypted Media Extension (EME), which enables these companies to put digital rights management (DRM) into the user’s browser, whether the user wants it or not, and whether such restrictions are as per the user’s local national laws or not.
[Reposted from Creative Commons, Link (CC-BY)] The “Safe harbor” provisions of the DMCA have been critical to build the internet as we know it today. Provisions like this one have given space to intermediaries providing platforms to host and transmit user-generated content without being held responsible for third party acts. The above is the legal reason explaining innovation on user-generated platforms and ways to communicate and, as a consequence, enhance rights such as freedom of expression.
[EFF Press Release, Link (CC-BY)] San Francisco – The Electronic Frontier Foundation (EFF) urged the U.S. Copyright Office today to protect the public’s right to research and repair everything from phones to refrigerators to tractors, to support the right of people with print disabilities to convert media into an accessible format, and to restore users’ rights to make fair and lawful uses of the software and media they buy.
Abstract: The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending take-down notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA take-down. Colleges and universities have been at the forefront of this controversy;
Abstract: This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.
Abstract: It has been nearly twenty years since section 512 of the Digital Millennium Copyright Act established the so-called notice and takedown process. Despite its importance to copyright holders, online service providers, and Internet speakers, very little empirical research has been done on how effective section 512 is for addressing copyright infringement, spurring online service provider development, or providing due process for notice targets.
This report includes three studies that draw back the curtain on notice and takedown:
The monkey selfie is back. Again. This time in an improbable lawsuit for copyright infringement filed by an improbable plaintiff, People for the Ethical Treatment of Animals (PETA), on behalf of the improbable photographer—an Indonesian crested Macaque named, according to the complaint, Naruto.
The backstory is that Naruto was minding his own business on the wildlife reserve where he lives when he happened upon an unattended camera belonging to the wildlife photographer David Slater. Intrigued by his discovery, Naruto grabbed the camera and snapped a few photos, including the now famous shot (reproduced at left) of his handsome, grinning face. The photo’s inaugural turn in the global press and as an Internet meme was back in 2011, when Slater first released the shots of Naruto to the media along with the story of their surprising origin. Caters News Agency published a full-body shot (also reproduced at left) with a caption asserting that it owned copyright in the photo, introducing two legal questions: Are these photos subject to copyright? If so, who owns the copyright in them?
[EFF Press Release, Link (CC-BY)] An appeals court in San Francisco today affirmed that copyright holders must consider whether a use of material is fair before sending a takedown notice. The ruling came in Lenz v. Universal, often called the “dancing baby” lawsuit.
Jennifer Urban and I just published a short version of our work on notice and takedown in the Communications of the ACM (currently paywalled but accessible through most universities). Here’s the general argument:
As automated systems became common, the number of takedown requests increased dramatically. For some online services, the numbers of complaints went from dozens or hundreds per year to hundreds of thousands or millions. In 2009, Google’s search service received less than 100 takedown requests. In 2014, it received 345 million requests. Although Google is the extreme outlier, other services—especially those in the copyright ‘hot zones’ around search, storage, and social media—saw order-of-magnitude increases. Many others—through luck, obscurity, or low exposure to copyright conflicts—remained within the “DMCA Classic” world of low-volume notice and takedown.
This split in the application of the law undermined the rough industry consensus about what services did to keep their safe harbor protection. As automated notices overwhelmed small legal teams, targeted services lost the ability to fully vet the complaints they received. Because companies exposed themselves to high statutory penalties if they ignored valid complaints, the safest path afforded by the DMCA was to remove all targeted material. Some companies did so. Some responded by developing automated triage procedures that prioritized high-risk notices for human review (most commonly, those sent by individuals).
Others began to move beyond the statutory requirements in an effort to reach agreement with rights holder groups and, in some cases, to reassert some control over the copyright disputes on their services.
Abstract: In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary “DMCA-plus” enforcement.
[Cross posted from brandonbutler.info, Link, (CC-BY)] Wednesday was day two of the Washington, D.C. portion of the triennial rule making to determine whether breaking digital locks that block copying from DVDs, Blu-ray, and other digital media should be allowed in a series of defined cases. There was also a series of hearings in Los Angeles, CA, last week to address some of the proposals with mostly West Coast-based proponents and opponents. There were some intriguing rays of hope in Wednesday’s hearing in DC.
At the following link you will find the FCC’s NPRM for establishing a “retransmission consent” regime online for a specific class of online services called Multichannel Video Programming Distributors. It addresses all services that make multiple linear video programming streams available online on a subscription basis: