Yesterday, the Ninth Circuit ruled copyright owners must consider the fair use doctrine before sending a takedown notice under the Digital Millennium Copyright Act in Lenz v. Universal Music Group. Read the case here: Lenz v. UMG – 9th Circuit

The case centered on this video.

As a father of two kids, the scene is very familiar. After the innocuous video was posted, Universal Music Group, the holder of the rights to Prince’s “Let’s Go Crazy” sent a takedown notice under the DMCA.

The DMCA is a powerful weapon, but this is the first time a court has warned that copyright holders need to use it with some care. Generally, the DMCA works like this: a copyright owner sends a takedown notice to YouTube or wherever the infringing material is being hosted or displayed. To avoid any liability for the infringement, sites like YouTube immediately take it down and send a notice to the person who originally posted it. That person can challenge the takedown notice by going to court which is what happened in this case where the Electronic Frontier Foundation helped the mother.

The mother won at trial and recovered her attorneys’ fees under a rarely enforced section 512(f) process that allows for counter-challenges to prevail if the takedown was done in bad faith.

According to the Ninth Circuit, before sending the notice, a copyright holder is supposed to consider whether the allegedly infringing material is a fair use and only send a takedown if there is a good faith conclusion that the targeted upload is not a protected fair use of the copyrighted work.

While that sounds good, fair use is not easy for laypeople to understand because judges and lawyers have a hard time with it. Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There are a lot of close calls when it comes to fair use – the “dancing baby” was not one of them. I certainly would not re-play that racket to avoid having to pay to download “Let’s Go Crazy.”

The court recognized, on the other hand, that with rampant and easy infringement on the internet, a rights holder does not have to do an exhaustive fair use analysis, as long as there is some.  The court wrote it was “mindful of pressing crush of voluminous infringing content that copyright holders face in a digital age” and that the analysis “need not be searching or intensive.”

Application Today

There is little doubt that the DMCA is subject to abuse. For example, disgruntled politicians use it to remove content that is otherwise clearly a fair use. Ahsley Madison used it to remove the posting of its data online. With this new case, people may think twice before quickly sending the takedown notice.

The Digital Millennium Copyright Act is designed to provide copyright holders an easy way to prevent the unauthorized spreading of their content on the web.  The oversimplified explanation is that copyright holders notify the website about the content.  The website then removes the material and allows the person who originally posted the material to contest the takedown.

This does not come up on a day-to-day basis in most businesses–unless you are YouTube.  But, this time, it involved John McCain.  The campaign posted clips from FoxNews on the site.  FoxNews claimed copyright and sent a takedown notice to YouTube.  YouTube forwarded the notice to the McCain campaign.  The McCain campaign argued “fair use” suggesting the videos should stay up until the issue was resolved. 

YouTube kept the videos down.  YouTube did so in accordance with the law John McCain voted for ten years ago.  By doing so, YouTube maintains its immunity from any claims Fox News might have over the posting of the copyrighted material. 

You can read more about the story here, here and here. Here is the letter the McCain campaign sent to YouTube.

Because the videos have been taken down, I cannot valuate the claims in the McCain campaign letter. Taking their claims at face value, they are likely to win a challenge 10-14 days from now, but YouTube has no incentive to allow the videos to stay on the site in case the McCain campaign is wrong. Under the DMCA, as the letter states, the McCain campaign is entitled to send a counternotice arguing there has been no copyright violation. Then, FoxNews has a deadline to file suit. If it FoxNews fails to do so, then YouTube can put the videos back up without liability. Thus, YouTube is just taking the safe route and not making its own judgment on fair use. The courts recently required the original takedown party (in this case FoxNews) to consider fair use, but YouTube is not required to and has no incentive to do so, especially considering the volume of videos downloaded daily on the site.

As the McCain campaign suggests, does there need to be a change to the takedown notice procedure applied to political campaigns? What about public interest groups? Other matters of public policy? Where is that line drawn?  Does the process need to be changed for everyone?  If only there were a DMCA maverick. . . .

The focus of the stories about this issue seem to be on the battles between McCain and YouTube and not FoxNews.  No one seems to care FoxNews was the one who sent the takedown notice in the first place and is required to consider fair use.  Fair and Balanced on fair use?

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I love college basketball.  Given that my Missouri Tigers haven’t given me much to talk about, I thought we could discuss the efforts by this upset Duke fan to have her image removed from the Internet captured during the Miami – Duke game that snapped Duke’s incredible 41-home-game winning streak.  You can read about it here.

I am not a Duke basher (nor fan) and I don’t want to pile on this poor fan.  Believe me, after what Kentucky did to Mizzou last night, I felt worse.  This does, however, raise some interesting legal questions.

How do you remove images from the Internet?

 

1. Copyright

The primary way is to use the Digital Millennium Copyright Act.  If you own the copyright to the image, it is usually pretty easy to get images removed from websites operated in the U.S. and to have the search engines de-index them.  You can read more about the DMCA here.  Generally, if you take the picture, you own the copyright.  The copyright to this image belongs to ESPN and probably the ACC or NCAA.  You know that really quick copyright notice for broadcasts – any use of images is prohibited, blah, blah, blah.  Screen shots would be included.  The fan could ask ESPN to get these images removed.  ESPN may be a little busy, however, because I think Tom Brady may have sneezed.

2.  Invasion of Privacy

There is little expectation of privacy in the stands of a nationally televised sporting event.  Do a search for certain NSFW conduct at sporting events to see how people forget this sometimes.  Also, look at the back of your ticket next time you head to a game.  There is a lot of fine print about the lack of privacy you may experience.  Nevertheless, let’s go through the common law claims of intrusion upon seclusion, publicity to private facts, appropriation of likeness and false light.

Intrusion upon seclusion.  The elements of the claim are: (1) intentional intrusion; (2) upon private affairs of another; (3) that is highly offensive to another.  Being upset at a basketball game is not a private affair.  Most states follow the stand in doctrine which provides that if the media stands where the general public could observe the events, then there is no intrusion.

Publicity to private facts.  To prevail on a claim, the information must not be a matter of legitimate public concern and its publication would be highly offense to a reasonable person.  I am not suggesting comments to a blog are true indications of what is offensive, but a quick view of them reveal that using that screenshot is not highly offensive to most.

Commercial appropriation of likeness.  This requires the (1) appropriation of one’s name or likeness; (2) for a commercial purposes.  Although ads are sold on blogs, the use of the name is not for a commercial purpose.  This cause of action usually applies to celebrities when a store tweets about them without permission or makes video games about them.  If a UNC fan used this picture to start selling t-shirts, then she may have a claim, but not for the use of the image on Twitter or blogs.

Portrayal in false light.  It requires: (1) publishing information that creates a false impression; (2) thereby casting the person in a false light; (3) creating emotional (as opposed to commercial) harm; and (4) the act is highly offensive.  I suspect there is nothing false about this fan’s feelings.  Like I said, no one saw me in my living room with a look of disgust last night, but there is nothing false impression about how she is feeling and why she is upset.

3.  Approach the websites

According to the article, the first image appeared on Twitter.  Under the Twitter Rules, posters are not supposed to abuse others, infringe on the rights of others or violate copyrights.  If you ask nicely and point out how posts violate a site’s terms, sometimes the wesbites will take it down although they may not legally have to.  In fact, in the terms of service, Twitter says it may not monitor the tweets and:

You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.

In addition to being at the mercy of Twitter’s whims that day, the problem is now that the image is on many other sites as well.

The Streisand Effect

We have talked about the Streisand Effect before.   It’s the name given to the phenomena resulting from increased attention to online posts, stories, websites, etc. only after someone complains about them or raises a legal issue about them.  Had the fan not asked to remove the image, I would not have read about it and would not be blogging about it. Sometimes, the wiser move is to let it go (no, I will not sing it).  It’s a bad business development strategy on my part, but is often the best advice I have ever given.

On the bright side, at least the fan was not wrongfully accused of being caught cheating on her boyfriend at the Ohio State v. Alabama game.

http://www.youtube.com/watch?v=-2QQj1n57ok

 

 

 

 

1. You Haven’t Lawyered Up.

OK, that may be a little dramatic, but the worst case scenario is that you have a handshake deal with your co-founders. After all, we are all buds, this won’t go wrong. Even if it never goes wrong, you need to have your agreements done and done correctly. Too many times, people come see us because there is a fight about who owns what or some software or web developer claims they own a piece of the company based on a conversation at the bar. Having proper shareholder or operating agreements is not a pleasant experience because sometimes it is the equivalent of a prenuptial agreement for an engaged couple – not exactly the romantic way to start things. The old adage, however, is often true . . . you can pay me a little now to get this done right or pay me a lot later to help try and clean up the mess. Once you grant an interest in the company and it vests to the co-founder, it is his forever without the proper agreements. The co-founder decides to chase his dreams of being a professional fisherman in Cabo and you are stuck slaving away trying to create value for him. You can easily avoid this with vesting and repurchase agreements.

2. Don’t over lawyer.

I know I just told you to lawyer up, but this is the internet so I can contradict myself with impunity. If you are a sole founder without any partners and are still at the stage of trying to figure out if you have a marketable product or idea, then go to a website and set up your company on the cheap (don’t tell anyone I said that was OK). Even if you have partners, you don’t need overly-complicated documents and financing as if you were already a multi-national company. You don’t need employee handbooks and agreements, complex vesting structures, ESOPs. If you are bootstrapping, get your product on the market first and then decide whether all this other stuff will be needed. The odds that you are the next Facebook are slim – you don’t need to act as if you will be attracting millions of VC money three months from set up. If it looks like that is a possibility, it is not that expensive to put the shine on your corporate documents and structure. Don’t pay for that until you need it.

3. Protect Your IP.

Just because the Secretary of State said you could use the name and the domain name was available does not mean you are free and clear. You may be infringing on someone’s trademark. You may need to take additional steps to protect your own trademarks. The last thing you want to do is invest in product launch only to get the cease and desist letter a few months later. If you are doing this on the cheap, Google the name and several close variations. Don’t use a generic or geographic name. Do your own search on the USPTO TESS search found at www.uspto.gov. This should help you sleep a little better at night although it is not foolproof. Also, if you can’t afford to get a patent (timing is important so don’t wait too long to visit with a patent lawyer if you have truly novel product) or you are not eligible for patent protections, don’t forget about trade secrets. If you keep the secret sauce from being disclosed contractually, you may get all of the protection you need.

Is all the IP owned by the company or the individuals who created it before the company was formed? Do the contract web designers or coders own the IP? Do the founders’ prior employers have any rights to the IP? If you don’t know the answers to those questions, you need to find out–now.

4. Don’t Over Protect Your IP.

I know, I did it again. Most start-ups do not really have earth-shattering IP. If you are approaching serious investors or VC’s, you are often only going to have one shot with them. Take it. Don’t demand a non-disclosure agreement unless there is really some secret sauce worthy of protection and be prepared to explain it. Investors don’t sign blanket generic nondisclosure agreements. You can still talk about the business, what it does and protect the secret technology or algorithm. Truth be told, you are probably not the only person to think of the idea and not the only one working on it. Your job is to be first to market and be the best. Demanding nondisclosures from investors may prevent any investors from showing any interest.

5. Don’t Go Asking Everyone For Money.

Despite what you may have heard about crowdfunding, general solicitation of anyone and everyone is not legal. Even if it becomes legally acceptable, it may not be the best idea for your company. There are securities laws and they can get complicated. Before you start seeking investors, visit with counsel and do it right.

6. Don’t Turn Away Good Money.

Are you sensing a pattern? The friends and family that want to support you really want to support YOU. They will often entertain convertible notes so you don’t have to value the company early on or invest in large legal fees. Having ten friends and family invest in you (preferably accredited ones; hence the “good money”) should not turn off future investors.

7. Don’t Go Chasing Money.

I don’t know how many times I have seen the entrepreneur spending all of their time chasing money rather than improving the product. Yes, some companies thrive in a very short time frame and there is a financially rewarding exit. You read about the latest one in the newspaper, right? You read about it, because it does not happen often. It is not likely to happen to you and most investors are turned off by the entrepreneur who thinks they are going to sell off in three to five years and move on to the next thing. Unless you are someone who has already sold off a handful of start-ups for millions, investors want someone that is passionate about the project they are investing in—not someone looking for the early exit. While not exactly legal advice, this misguided mindset can cloud your legal strategies. I’ve heard numerous entrepreneurs tell me they have to be Delaware corporations because that is what the venture capital firms want. If you are good enough, your state of incorporation won’t matter and if the money is right, it is something you can fix. In the meantime, you have made your start-up costs more expensive and your administrative burden worse. Others disagree with me, but don’t let the one-in-a-million chance take you away from focusing on your product and overcomplicate matters. You don’t plan your life on winning the lottery, you should not plan your business life on winning the lottery either.

8. Get a good accountant.

A lot of the times I tell entrepreneurs to ask their accountants. Lawyers deal with risk mitigation, accountants are more attuned to tax and accounting advantages. The right accountant can help with vesting strategies and 83(b) elections. The accountant should be one the primary persons to decide whether you should form a corporation, an LLC or limited partnership and what the effect and cost of conversions down the road and the administrative cost of each is in the meantime. You have probably figured out by now that just because you read online that Silicon Valley VCs prefer Delaware corporations, it does not mean it is the right fit for you. If your company and idea are strong, you will find money. If you are told no because you are not a Delaware corporation, that is simply a cop out.

9. Get your e-commerce protections in place.

If you are primarily an e-commerce site, get your terms of service in order and make them enforceable through a click-wrap agreement. You may think many of that is boiler-plate, but when it is applied to a dispute, it very well may save your company. Make sure you are DMCA compliant so that you don’t get sued because someone violated copyrights when they posted comments to your site. Make sure you are complying with any applicable FTC or other regulations. While this sounds expensive, experienced counsel can easily spot the issues and has probably handled them before.

10. Take Your Lawyers/Accountant to Lunch.

I didn’t include this because I am hungry or lonely. It is the little-known industry secret. Lawyers have to eat lunch. I would rather eat lunch with you than by myself and it is a convenient time “off the clock” to hear about everything that is going on in the company and get the quick diagnosis. We really are interested in you and the company and enjoy these conversations without having account for every minute.

 

The mid-terms are coming up, so you know there will be stories of politicians getting into clashes with artists over the use of songs and other content in ads and at rallies.  In Texas, for better or worse, the real competition is often in the Republican primary and several run-offs have already brought up some copyright issues.

But it’s a fair use!

Many ads use snippets from copyrighted TV news stories or headlines from local papers often citing fair use.   Fair use is an affirmative defense to a copyright violation meaning, it is the campaign’s burden to prove the use was fair.   Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

A Texas Showdown Example

Dan Branch is a candidate in a run-off for Texas Attorney General.  NBC-owned Dallas station KXAS is arguing the Branch campaign used too much footage from its copyrighted newscast in this letter.

Specifically, NBC says the ad features “extensive use” of the story and features the voice and likeness of their anchor.  All but two seconds of music at the beginning is the TV news story.  NBC also says the use of the footage makes it appear the anchor and the station support the candidate and creates questions of journalistic integrity.

You can see the ad here for yourself.

NBC has demanded that the campaign cease further dissemination of the ad.  As of today, the video was still up under TexansforDanBranch on YouTube.

The run-off for the Republican primary in the race for Lt. Governor has gotten more attention including this ad:

Parody is also a defense to a copyright claim.  Yes, even bad parodies can be protected. Just think what happens when the ads start focusing on the people in the other party.

Related:

The DMCA and campaigns

The general legal advice to website operators who allowed User Generated Content (UGC) in the form of comments, videos or pictures used to be relatively easy.  The Digital Millennium Copyright Act protected you from copyright and Section 230 of the Communication Decency Act protected you from defamation and other liability.  Recent developments are bringing a little more grey into what was previously a black and white world.  Good news for lawyers; bad news for business.

The DMCA

The DMCA provides web hosts and internet service providers a “safe harbor” from copyright infringement claims resulting from content provided from others if certain procedures are followed. If the safe harbor qualifications are met, only the customer or user can be liable and not the actual website operator.

To qualify for the safe harbor protection, the site must: (1) notify the customers of its policy; (2) follow proper notice and take down procedures; (3) designate a copyright agent with the U.S. Copyright Office; (4) not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network.

For a new web-based start-up that is going to have UGC, taking advantage of the DMCA is a no brainer.

Was that Sly and the Family Stone in the Background?

A recent decision against music-sharing website Grooveshark suggests that sound recordings prior to 1972 may not be covered by DMCA safe harbor protections.  Universal Music Group sued Grooveshark in New York state court for copyright infringement.  The trigger legal response is that the DMCA means Grooveshark is immune.

Easy, case dismissed.  Then, the New York appellate court reversed the dismissal late last month.  The legal issue hinges on whether the DMCA provides for a “safe harbor” for sound recordings before 1972 because these recordings are governed by state law and not U.S. copyright law or the DMCA.

If you want the legal details which focus on the definition of copyright, you can read this post from Professor Goldman’s Technology and Marketing Law Blog.  The simple answer is the DMCA needs to be fixed by Congress.  This recent decision directly conflicts with another prior decision so it is likely there will be further appeals that may take several years to resolve absent Congressional action.

What you need to know if you have a website with UGC sound recordings is that you may have a problem.  Is it feasible for you to determine whether the uploaded sound recording is Isaac Hayes’ Theme from Shaft (1971) . . .

Marvin Gayes’ Let’s Get it On (1973) . . .

or Don McLean’s American Pie which was recorded in 1971, but became a hit in 1972?

http://www.youtube.com/watch?v=Y0Y_XRiJsCI

If you start pre-screening for pre-1972 sound recordings do you now have knowledge that the material or activity is infringing or of the fact that the infringing material exists on your network taking you outside of the DMCA safe harbor?

The good news is this case appears to be the outlier.  As long as you know and are willing to accept the risks, you probably do not need to make any wholesale changes.  You have the recent pro-DMCA case in Viacom vs. YouTube, a federal New York decision and a Ninth Circuit Court of Appeals decision that reaches the exact opposite result.

At least I don’t have to worry about defamatory UGC because of Section 230, right?

Section 230 of the Communications Decency Act provides immunity to websites for defamation and related claims based UGC.  It states:

no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This is the law that prevents Facebook from being sued relentlessly for alleged defamatory posts and also allows sites like RipOff Report and The Dirty to survive.  Based on Section 230, we generally advise sites not to worry about liability for anonymous commenters – at least for now.

The United Kingdom recently passed the Defamation Act 2013 which sets up a notice and take down process for website operators to protect themselves from UGC defamation claims in the UK.  Basically, a plaintiff cannot sue unless the plaintiff sends notice to the website and the website refuses to take it down.

Although ripe for abuse, it does not sound too bad until you get to the part of the law that says websites can only take advantage of this protection if the plaintiff can identify the person who actually posted the offending content forcing websites to authenticate its members.  There goes anonymity.  You can read more details on the law here.

It does restrict “libel tourism” so the local pizza shop in Sugar Land can’t take advantage of this against Yelp for the review by the interloper in New Territory.  But, if the offended person can convince a court in the UK the case should be there, you could be subject to a UK judgment.

So, should you require authentication of all users?  Can you set up your site so that all users from the UK have to authenticate their identities?

The answers are no longer so easy.  For example, what do you do if a UK citizen slanders Roberta Flack on your American-based website while uploading a copy of The First Time Ever I Saw Your Face which was originally a 1957 folk song but recorded by Flack originally in 1969, but re-released in 1972 when it became a number one hit?

It could make your head spin, but that’s why lawyers make the big bucks, right?

 

The district court in New York dismissed Viacom’s lawsuit against YouTube yesterday.  Yes, this case has been on appeal and remanded several times.  You should read the details on Professor Goldman’s Technology and Marketing Law Blog here.  Viacom may appeal the  Second Circuit Court of Appeals once again, so it may not be over.

To summarize the decision, the district court ruled that unless Viacom can prove YouTube has actual knowledge that each uploaded clip is a copyright violation, Google is entitled to the immunity granted it by the Digital Millennium Copyright Act, the DMCA.

DMCA BASICS

The DMCA provides web hosts and internet service providers a “safe harbor” from copyright infringement claims resulting from content provided from others if certain procedures are followed. If the safe harbor qualifications are met, only the customer or user can be liable and not the actual website or ISP, i.e., YouTube.

To qualify for the safe harbor protection, the site must: (1) notify the customers of its policy; (2) follow proper notice and takedown procedures; (3) designate a copyright agent with the U.S. Copyright Office; (4) not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network.

Summary of the Ruling

This case has centered on the last prong.  Viacom has been arguing YouTube generally knows copyrighted videos are uploaded and has benefited from a willful blindness to the infringement.  The court ruled there needs to be evidence that YouTube knows each and every individual clip is copyrighted at the time it us uploaded rather than knowing that it generally happens.  Specifically, the court wrote:

knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit the safe harbor. To forfeit that, the provider must influence or participate in the infringement.

Viacom admitted there is no technology in place that would give YouTube actual knowledge regarding the copyrights attached to each individual video at the time it is uploaded.

What does it mean?

This ruling confirms the burden to track copyrighted material is on the copyright owner and not the website.  If you have a website that takes user-generated content, you should feel better.  Even if you know you some of your users often upload copyrighted materials, you will not be deemed to “have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network” until the copyright owner tell you.

As long as you satisfy the other safe harbor requirements, you should be safe.  Viacom may appeal and try to resuscitate the “willful blindness” argument.  There is also some concern that the words “influence” or “participate” in infringement may leave open a hole for copyright owners to go after certain websites more active in seeking and pushing the content.

[Update 4-22-13]  I should have put this ruling in context with the recent Ninth Circuit ruling in UMG v. Veoh.  The Ninth Circuit originally ruled in favor of Veoh, the online video site against the record company UMG, but decided to revisit the decision in the wake of the Second Circuit Court of Appeals’ decision in Viacom which took a slightly more narrow view of the immunity protections.  Last month, the Ninth Circuit ruled again in favor of Veoh affirming a broad support for the initial free flow of information on the Internet.  The Ninth Circuit detailed, however, the precautions Veoh used to prevent the initial downloading of copyrighted materials which raises the questions of whether there is a requirement to employ reasonably available methods to prevent the uploading of copyrighted material in the first place.  You can read more details in this post from Kimberly Herman of Sullivan & Worcester.

In the interest of levity and to show how long this case has been going, enjoy this clip from the Daily Show in 2007 that discussed the case.

 

The movie industry, the music industry and five major internet service providers, with some input from the White House, quietly got together in 2011 and came up with a system that would allow the ISPs to notify individual customers they were engaged in illegal peer-to-peer file sharing in violation of copyright laws.  With equally low key fanfare, the Copyright Alert System went into effect this week.

Under the new system, copyright owners will notify ISPs of suspected violations.  The first of the alleged six strikes is supposed to be an email from the ISP to the customer notifying the customer of the illegal act and providing the customer with information about illegal file sharing.  With each strike, the ISP’s action will increase from requiring the customer to acknowledge receipt of the inquiry to eventually temporarily slowing their connection or redirecting Internet traffic until they acknowledge they received a notice or review educational materials about copyright law.  Consumers who believe they are innocent can pay $35 to appeal the decision and recover the fee if they win.

You can read more about the proposal here.  You can also listen to my KRLD Interview with Mitch Carr.  Here is the innocuously-named Copyright Information Center’s video about the program.

The Pros

This new system will allow innocent victims to take corrective actions. If I had an open wireless signal that an unscrupulous neighbor was using to download pirated porn, I would rather find out this way.  It’s better than being hit with a lawsuit naming me as an aficionado of porn. The same would hold true if my kids downloaded pirated movies or music.

Although getting throttled would be bothersome, the ISP’s refused to automatically disconnect customers after their sixth strike according to this CNet article.

There was initially some privacy concern that content owners would be watching what we are watching and that ISPs would share that information. As explained in the video, that does not appear to be the case

The Cons

This will be ineffective against the blatant offenders. You can disguise your IP address, use a public wireless and never be caught up in this system. David Zax calls the system “toothless” on the MIT Technology Review.

There is concern about the lack of transparency in the development of this system with a desire for transparency with its implementation. There are no judicial or administrative oversight or due process protections. The Copyright Information Center says they will be transparent and provide reports about notices that get sent out.

Finally, the DMCA already allowed ISPs to disconnect service to egregious violators. While disconnect is not officially part of the CAS, it can still be done. Also, there is nothing to prevent a lawsuit. This is not “law” and does not change existing copyright law. It is simply an agreed-upon system between ISP’s and the entertainment industry.  If they would prefer to sue, the copyright owner can still sue.  For the copyright owner, however, it is a better PR maneuver than suing grandmas for hundreds of thousands of dollars like in the post-Napster mid 2000’s. 

So What Should You Do?

Pay attention. If you get an alert – figure out why. It may be one of those blessings in disguise. For more on what to do, read here.

 

 

Yes, it’s the lazy way to do a post during the week before Christmas and New Year.  In my next post, we will use this information to help predict the trends of legal issues for online media, marketing, internet law and start-ups for 2013.

1.   SOPA The Debate in Plain English and the SOPA Update and Editorial

The two posts were actually numbers 1 and 3 respectively and if you click on the Update and Editorial, you can see the original post.  The original post was done in December 2011, but as Congress debated the issue in early January 2012, the readers kept coming.  These two posts were the most popular ever for this blog and there was a lot of angst about what Congress.  As we sit here with three days before the end of 2012, it almost seems quaint that Congress fought about SOPA rather than a made up self-imposed fiscal cliff.

2.   The Law of Using Images from the Web on Your Blog

This tells me there is a need for some Internet Law 101 type of information.  On my list of things to do in 2013 is to put together a series of these types of posts for a more permanent placement.  Should I self-publish an e-book?

3.  City of Paris Ordered to Pay for Reverse Domain Name Hijacking

This was the most interesting litigation matter I worked on this year.  If you are a domainer the decision was very important.  Or, if you just think the French are rude or still don’t like Zinedine Zidane from his 2008 World Cup headbutt, you might just find this story interesting.

Yes, that was a gratuitous French soccer snub.  Now, to collect against the City of Paris in 2013.

4.  The three-part series on online defamation that included (1)  Protecting Yourself Online Does not Have to Include Legal; (2) How to Identify the Anonymous Online Defamer; and (3) Conclusion – Anti-SLAPP

This may have been popular because I often send potential clients there.  If you think you have been wronged on a review site or by some blogger, read this series for a basic understanding of your options and the role a lawyer can play.

5.   The Cost of Fake Online Reviews Goes Beyond Morality

This tells me businesses are really concerned about online reviews.  The DMCA protects the review sites, but should there be changes to this law?  Of course, the review site is protected, but you should know by now that if you provide the review and it crosses the line, you could be liable.

On an interesting note, just out of the top five most viewed posts in 2012 was a post I did back in 2009 entitled Online Harassment Becomes Law Today.  That tells me not much has been written about the Texas law and it probably has not been used too often.  I often tell potential clients about it suggesting they visit with a local D.A. about enforcing the penal provision.  I’ve not had anyone come back and tell me the D.A.. agreed to prosecute.