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Movie and Newspaper Associations, Software Makers Support Viacom’s Appeal of Billion Dollar YouTube Court Decision

A Clinton administration architect of a digital age copyright law, a former solicitor general for the United States, and an army of content industry associations on Friday sided with Viacom in its appeal of a June court decision that said that YouTube wasn’t liable for infringing the media company’s copyrights.

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A Clinton administration architect of a digital age copyright law, a former solicitor general for the United States, and an army of content industry associations on Friday sided with Viacom in its appeal of a June court decision that said that YouTube wasn’t liable for infringing the media company’s copyrights.

The moves indicate that this ongoing lawsuit could become a test case that more firmly delineates the boundaries of acceptable behavior at media start-ups that might be looking to boot-strap themselves on pirated content.

Bruce Lehman, who was the U.S. assistant secretary of commerce and commissioner of patents and trademarks under President Clinton, filed papers with an appellate court Friday that indicated that he would be weighing in in favor of Viacom.

He’s now chairman of the International Intellectual Property Institute, but he was one of the key players who represented the United States on the international stage in developing global copyright agreements at the advent of the internet boom. He’s widely acknowledged as one of the key creators of the U.S. Digital Millennium Copyright Act, the law at the heart of the current dispute between Viacom and YouTube.

Also weighing in favor of Viacom Friday at the Second Circuit Court of Appeals was Gregory Garre, the U.S. Solicitor General under President Bush. He’s representing Microsoft and video game maker Electronic Arts in a friend-of-the-court brief.

The Motion Picture Association of America also filed a brief in favor of Viacom jointly with the Independent Film and Television Alliance.

“The decision of the lower court, if not overturned, will allow businesses to profit by inviting massive amounts of online copyright theft and avoid liability simply by turning a blind eye to the direct, illegal effects of their business models,” Daniel Mandil, general counsel and chief content protection officer of the MPAA said in a press statement. “We are confident that the Court of Appeals will recognize that the lower court’s decision was entirely inconsistent with the Supreme Court’s unanimous decision in Grokster and with the plain language of the Digital Millennium Copyright Act.

Newspaper publisher Advance Publications joined with the Association of American Publishers, the Association of American University Presses, the Associated Press, the Center for the Rule of Law, Gannett and 17 other organizations and newspapers — including The National Football League and The Washington Post, also chimed in on Friday in favor of Viacom.

“This case presents the question whether a business that knowingly builds an audience through stolen content is immune from copyright liability as long as it does one thing—comply with formal “takedown” notices it receives under the Digital Millennium Copyright Act (“DMCA”),” wrote the lawyers for the group in their brief. “At issue is whether each statutory requirement of the DMCA safe harbors should be given independent force and effect; at stake is nothing less than the ability of copyright owners to enforce their copyrights on the Internet against entities that rely on copyright infringement as a business model.”

In June, New York Federal District Court Judge Louis Stanton sided with YouTube’s parent company Google, and agreed with its argument that YouTube is not liable either directly or indirectly because it’s protected by the DMCA’s safe harbor provision.

The provision states that a service provider isn’t liable if it has no knowledge of the infringements occurring on its system, and additionally that it is shielded from liability once it acts quickly to remove the infringing material when it is aware of it.

Stanton examined both the DMCA’s legislative history and case law to arrive at his conclusion.

“The present case shows that the DMCA notification regime works efficiently: When Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them,” Stanton wrote.

During the trial, Viacom’s lawyers dug up communications between YouTube’s founders before Google bought the start-up. Those communications indicated that the founders knew that much of the content on youTube was copyrighted, and was attracting a lot of the site’s traffic.

“This case presents the question whether a business that knowingly  builds an audience through stolen content is immune from copyright liability as long as it does one thing—comply with formal “takedown” notices it receives under the Digital Millennium Copyright Act (“DMCA”),” the content industry’s lawyers wrote in their Friday brief. “At issue is whether each statutory requirement of the DMCA safe harbors should be given independent force and effect; at stake is nothing less than the ability of copyright owners to enforce their copyrights on the Internet against entities that rely on copyright infringement as a business model.”

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

Copyright

Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights

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Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright

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Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee

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Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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