Category: Video
June 16th, 2008
Overly restrictive A.P. quoting guidelines risk winning battles at the war’s expense
Saul Hansell reports today that the Associated Press "will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright."
The problem with “clear standards” is that as Tim Wu (quoted in the article) correctly points out, the legal standard is unclear, and subject to interpretation on a case by case basis. There are instances when reproducing the entire work (or large portions thereof — “Fisking” we used to call it, seems like eons ago) with sufficient commentary is fair use. The A.P.’s vague statement that it wants to police what appears to be reproduction for reproduction’s sake as opposed to commentary, thus is a fair representation of what it’s entitled to do by law; anything more specific might not hold up.
Given this, it’ll be interesting to see what the A.P. cobbles together with the Media Bloggers Association, which of course does not act for and can’t bind the whole blogosphere and Web. If, as the statements to Hansell suggest, it’s as restrictive as purporting to make brief direct quotations against A.P. policy, the A.P. will either have to backtrack or try to get judicial buy-in on a policy that in all likelihood would be deemed overbroad.
(Image by SideLong, CC Attribution-2.0)
Related: Mike Arrington, Here’s Our New Policy On A.P. stories: They’re Banned, and all stories and posts linked from there; Techmeme re same.
March 31st, 2008
Sparks fly over copyright at Tech Policy Summit
The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.
I. Copyright Policy
The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:
Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.
Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.
Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:
Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.
Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:
In Hollywood, it’s not just about the money. It’s about all the money.
Von Lohmann concurred:
Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.
He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.
At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »
October 15th, 2007
Are satellite shows and podcasts accessiblity-equivalent?
Robert Scoble is wondering whether accessibility laws may cripple videocasts (and presumably podcasts). Scott Bourne had an interesting (if inconclusive) post on the subject last year, and the head lemur posits that the touchstone (in the context of the Target case presently in the news) may be whether or not you’re doing e-commerce. I’m out of my depth with accessibility law, but the subject has certainly come up and intrigued us for the last two years in the legal session at the Podcast and New Media Expo.
My thinking, uninformed as it is, is that Web accessibility and video/podcast accessibility are different animals. Since podcasts aren’t going out over any FCC-regulated spectrum, perhaps their accessibility requirements (if any) should be similar to those applicable to satellite broadcasts. If you’re on top of those requirements or have further thoughts (e.g., perhaps satellite isn’t the proper analogy at all), please chime in in the comments. And while we’re at it:
(Image by laRuth, CC Attribution-2.0)
October 8th, 2007
In the trenches with Live Web law at EFF’s Bootcamp
If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?
EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.
This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)
I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:
Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’
For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.
Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)
(Image by A. www.viajar24h.com, CC Attribution-2.0)
September 17th, 2007
IP and the user generated economy at TechCrunch40
Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.
StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.
It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.
Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.
Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.
August 13th, 2007
Lawgarithms Links for 8/13/07
Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:
Two-word license agreement: “F— YOU!”, from Boing Boing by Cory Doctorow
Fair Use for YouTube & MySpace Users, from Slashdot by Zonk
What bloggers should know about copyright protection for their writing and photographs, from IP Law Daily by mamarant
Trademarks FAQ, from Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout by Brett Trout
Catching Up: Derivative Works and Fair Use, from IPTAblog by Andrew Raff
Avatar Rights, from Wonderland by Alice Taylor
Proposal to Make Suing Anonymous Avatars Harder, from Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds by Benjamin Duranske
Lawsuit Filed Against Second Life Avatar, from Top Tech News by Phil Davis
Prophesies, from Doc Searls Weblog by Doc Searls
A Guide to Google’s APIs, from Mashable! by Adam Ostrow
It All Comes Together: The getting good with BitTorrent roundup, from Lifehacker by Adam Pash
Most Popular DVDrips on BitTorrent (wk31), from TorrentFreak by Ernesto
Stop! Don’t click “I Agree” before you read the Terms of Service, from Yap 3.0 by Robin
YouTube, Google Street View: the copyright, trademark, AND privacy trolls are coming!!, from ZDNet Blogs by Russell Shaw
Getting data OUT of Facebook, from ZDNet Blogs by Dennis Howlett
Electronic Filing Of Copyright Applications Has Arrived (at least for beta testers), from Clock Tower Law Group’s shared items in Google Reader by Aaron Silverstein
Internet Vote-Swapping Legal, Says 9th Circuit, from Threat Level - Wired Blogs by Sarah Lai Stirland
Facebook, Identity, and OpenID, from Ministry of Intrigue by daniel@andrlik.org (Daniel Andrlik)
Let’s kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts, from Online Guide to Mediation by Diane Levin
Taking Intangible Electronic Files is Criminal Fraud–NM v. Kirby, from Technology & Marketing Law Blog by Eric Goldman
Video Site Veoh Sues To Stop Universal, from Top Tech News by Richard Koman
Surfing your clickstream, from ZDNet Blogs by Ed Gottsman
Hyperlinking & the law: IMPACT guide to the essentials, from IMPACT® by Alex (note the focus of this piece is UK/EU)
August 2nd, 2007
Social networks: what goes out, what goes in
“Social Networking 3.0″ was on the agenda this afternoon at the AlwaysOn Stanford Summit. This one was a “must watch” for me, as will be Dan Farber’s later today on “The Democratization of Media.” You can follow along with the conference’s live Webcast here.
Moderator Charlene Li, senior analyst for Forrester Research, was joined by Travis Katz, senior vice president and general manager of MySpace International; Dustin Moskovitz, co-founder of Facebook; Rich Rosenblatt, CEO of Demand Media and former MySpace executive; Gina Bianchini, CEO of Ning; and Karl Jacob, CEO of Wallop. Dan blogged the panel on Between the Lines, and, as he says, most of the discussion focused the future of social networks. I was most interested in the comments concerning social networks and identity, attention, and intellectual property.
On the identity front, Charlene Li stated the truism that maintaining identities across different social networks is “a pain,” and wondered when the social networks we see today will become more open. Facebook’s Dustin Moskovitz recognized that portable identities are necessary, but didn’t go into particulars of how Facebook is or will be addressing this. Rich Rosenblatt said they talk internally at Demand Media about “the portable profile,” and says Demand Media is working on letting users log in with a single profile then select from a mix of options as to where they want to be. (My impression was he was not talking about navigating out of the Demand Media environment.) MySpace’s Travis Katz is interested by the notion of OpenID and a single, portable identity, but thinks it’s “complicated” to make it happen. And Gina Bianchini challenged the notion that social networking users want a single, inflexible identity to follow them around: “Your wakeboarding social network is fundamentally different from your independent journalist one. People in the real world have different sides of themselves that they show to different groups, different people, different communities.” She makes a good point, and I think the digital identity community is on top of that nuance. Though Tantek Çelik Twittered me to ask about their plans, if any, for using microformats as an open portability standard, sadly I didn’t get the nod from the microphone handler. [Update:] See Fred Oliveira: “A good start: A few social networks already have microformatted data on user profiles (Last.FM, Dopplr, Twitter and Cork’d), meaning any other network could easily consume this data when you sign-up, saving you a load of trouble - which is exactly what Dopplr (being smart as it is) does. Now if other networks would tag along, that would be superb.”
Travis Katz, Dustin Moskovitz, Rich Rosenblatt, Gina Bianchini, Karl Jacob
On the attention front, in response to the question “Where’s the money going to come from?” the panelists answered with nearly a single voice: targeted advertising. But transactions based on user desires and intentions are on the radar as well:
Travis Katz: the advertising model on social networks is going to be here a long time. Other models will probably emerge too. MySpace is looking at ecommerce models. You always feel better buying from a trusted source. When you talk about transactions between individuals, there’s a commerce opportunity there too.
Karl Jacob: Wallop is all transaction, no advertising. We believe there’s a world down the road where you buy the things you need to dress up your profile and the applications you want to use. Akin to the ringtone market.
Gina Bianchini: If I had to choose between the ringtone market and targeted advertising, I’d choose targeted advertising. There’s a huge opportunity to bring what is happening with AdWords into social networks. If you take a monetization model that’s working today and generating significant amounts of money, and apply it to a market that is only going to get bigger and more sophisticated as far as targeted advertising, it gets very interesting.
Finally, on the subject of intellectual property, when asked what was missing from the social networking ecosystem and what he would invest in if given the opportunity, Rich Rosenblatt commented on the need for what I would call a “third estate” of media: outside the copyright and use limitations of the products of the big studios, labels, and publishing houses, and yet a step above one person’s photos, films, etc. made primarily for personal use. A class of media produced and designed for Web distribution. Gina Bianchini challenged the notion that “amateur” media can’t comprise this third estate:
Rich Rosenblatt: We’d like to see more content actually made for the Internet. There are two layers of content. Studio generated (lots of trouble and fighting there), and user generated but not usable (one guy’s photos of himself). We’d like to see content that more than a few people want to see.
Gina Bianchini: I would argue that that’s happening today. On YouTube some of that gets lost in the crowd, but put it in a community of really interested people, and it’s very powerful.
Rich Rosenblatt, to Gina: But if you could buy wakeboarding content for your wakeboarding social network, wouldn’t that be great?
Gina Bianchini: From my perspective, one of the benefits of social networks is you and your friends can watch your own stuff. Another benefit is the good stuff rises to the top. I would rather have the material be truly user generated.
Karl Wallop: the good content and the good applications will all come from the current and up and coming generations of users.
I have long thought Creative Commons moves us significantly closer to this third estate media ecosystem, but doesn’t quite take us all the way there. John Palfrey points this out in his post today on blog scraping and the ongoing licensing/compensation gap.
July 9th, 2007
Embedding a headache
Jonathan Bailey of Plagiarism Today picked my brain for his article at the Blog Herald examining the Copyright Risks in Embedding YouTube Clips:
[W]ith the read/write Web comes a whole new set of challenges. As we begin to share one another’s content like never before, it is not enough to ensure that we don’t upload content that might be infringing, but we have to make sure that we don’t use infringing works posted by someone else.
As the article discusses, you’re not protected from direct infringement liability simply because you’re embedding a clip available on a video hosting site, and such sites (YouTube is the example in the article) generally have express disclaimers as to intellectual property issues relating to use of material hosted there. While going after small site holders who have perhaps accidentally embedded infringing videos would not be a popular move, it might actually be an effective strategy in the Viacom, etc., v. YouTube drama. If lots of John Q. Bloggers were pursued for embedding works they found on YouTube, the backlash against YouTube for making that possible could be considerable, despite YouTube’s on-point disclaimer.
All of which underscores the need for group/collaborative bloggers to have clear understandings with one another. When someone’s casual embedding of a YouTube video can subject the site to a potentially whopping damage award, co-bloggers should think hard about having everyone 1) agree to be solely responsible for their own submissions, and 2) represent and warrant to one another that they have the rights and permissions to use what it is they’re posting. The same holds true for blogging networks and their bloggers,
temporary guest bloggers, etc.
[Update, 07/10/07:] Internet/IP law guru and EFF superstar Fred von Lohmann responds to the Blog Herald article that an embedded video or image is "a link. Just a link. Nothing but a link," and as such could trigger at most a claim for contributory infringement. (Fred also discusses how one can limit exposure for that sort of liability under the DMCA’s safe harbor provisions.) I certainly hope Fred is right that courts confronted with the issue will be inclined to analogize embedded videos to the “bottom half of the screen,” full-sized image viewable inline linking analyzed in the Ninth Circuit’s Perfect 10 v. Google decision. It’s important to remember though that Ninth Circuit decisions may be persuasive, but are not binding, on other Circuit courts or the U.S. Supreme Court, and that even the Perfect 10 “server test” analysis of direct infringement of the display right focused heavily on whether full-sized (or essentially so) versions of the work could be “perceived” or “otherwise communicated” from the conduct in question.
June 28th, 2007
Why I’m buying an iPhone
As if anyone needed to list more reasons to buy an iPhone. But I haven’t seen anyone (save Steve Gillmor) write about most of the reasons I’ll be buying this device, so here they are.
By consolidating phone, contacts, email, music, podcasts, video, and Web in a single device, the iPhone promises to be the world’s most powerful (and portable; same thing) attention management machine.
150-odd channels, always something on. As of today I’m subscribed to 152 podcasts. I don’t listen to/watch them all regularly. Rather, they serve as bookmarks to a universe of good material I can call up at a moment’s notice to suit the prevailing time allotment and mood. Five minutes to get home from the gas station? Send in the Mighty Mommy. Longish drive? Long live TWiT. Leisurely drive? Escape Pod take me away. Manicure, pedicure, and neck massage? (My fave.) Diggnation, or Cranky Geeks, or…Lest we forget! There’s also always an episode of The Office or 30 Rock to catch up on. And none of this has to stream; it’s all there, on the hard flash drive, thanks to iTunes syncing. Also thanks to syncing, the computer and Apple TV at home know what’s been listened to or watched, and kindly put it away and queue up something new.
Toddler control. YouTube on demand. For emergencies only, but in those most dire of circumstances, what a lifesaver. iTunes movies too, and the iPhone’s viewing screen is just a little smaller than most portable DVD players.
Merging Gmail and phone. Gmail + auto-checking the account (every 15 minutes is virtually indistinguishable from push, and you just know they’ll have push before year-end) + iPhone’s keypad means I’ll never need or want a Blackberry. Ever. Gmail + integrated dialing means I’ll call 411 96% less than at present.
Wandering Web. When I take my laptop with me on a trip, 9 times out of 10 it’s so I can have Web access on the road. Everything I need lives on the Web. Frequently these days I’m leaving the laptop at home (and relying on borrowing someone else’s Web access when needed), but of course always bringing my cell and iPod because (1) they’re vital, and (2) they’re portable. Putting it all in one very appealing form factor will make me one happy traveler (not to mention a somewhat less pesty guest).
As someone already under AT&T’s thumb, the single carrier thing doesn’t bother me. Service is just as good/bad as any other carrier I’ve used. I wish the Web were faster, but it will be, particularly with millions of iPhone users demanding it. And it looks as though the iPhone rate plans will be more inclusive and cheaper than the one I’m on.
In case you were wondering whether there are legal ramifications to all this, there are. iTunes mainstreamed legal music downloads and marginalized illegal file sharing. For the vast majority of people who want things easy, fast, functional, legal, and reasonably priced, it’s already doing the same for movie and television downloads. The iPhone is poised to hockey-stick this trend, as it pairs a device truly designed for video — as opposed to a successful music player with video a late addition on a tiny screen — with iTunes for the first time, and extends Apple’s reach into the Windows/PC user universe.
[Update, 4:25 p.m.] Tom Foremski’s point about the significance of the iPhone’s WiFi capabilities is an excellent one. I also think the applications development around the iPhone is going to be um, active. If not unprecedented. Check out everything that is just waiting to complement the still more than 24-hours from available device at Mod My iPhone (via net@night), and also Dan Farber’s post about iPhone CRM (Dan’s concept of the iPhone as "post-PC," riffing on Steve Gillmor, is one that resonates strongly with me). Also, given my excitement about the iPhone’s YouTube integration, coupled with my sense that the iPhone will handle media best (at least at first) when it’s able to store, not stream, I’ll be eager to give Clippz a try too. Per its recent press release, Clippz now "now offers its entire MySpace, Metacafe and YouTube collections encoded in Apple iPhone’s H.264 file format." (And for anyone who, like me, might have been until now jargon-challenged as to "sideload," Wikipedia rides to the rescue.)
June 20th, 2007
Viacom and YouTube lawyers and others are in violent agreement: intellectual property won’t kill social media
There has been a good deal of violent agreement thus far here at Supernova, but I was pretty surprised at the degree of it we had on the panel I moderated this morning, captioned Will Intellectual Property Kill Social Media? The answer was resoundingly “no,” and the converse also held true: social media won’t kill IP, either. Instead, they’ll find a way to productively co-exist, or so we all seemed to think. In addition to me, “we all” consisted of:
- EFF Senior Intellectual Property Attorney Fred von Lohmann
- Dabble Founder and CTO Mary Hodder
- Viacom Senior Vice President and General Counsel Mark Morril
- YouTube General Counsel Zahavah Levine
- Morgan Lewis IP partner Ron Dreben
Despite her protestations to the contrary, the BBC’s Alice Taylor took excellent notes of the session so I encourage you to check them out.
I realized about midway through I’ve been in sessions that sounded like this one before — but not at a conference, at a mediation. There was a stunning amount of agreement between Zahavah, Mark, and Fred about things like what should be done about non-transformative, verbatim copies of unlicensed works posted by users simply to make them accessible or more accessible (i.e., rightsholders should have streamlined and effective ways of policing them), and the social importance of the broad-based creativity and communication unleashed by social media tools (i.e., they must be preserved and encouraged to flourish). With all the consensus we had, if I hadn’t known there was a $1 billion lawsuit pending over these issues, if you’d tried to convince me of this afterward I’d have had to laugh in your face.
All of which leads me to shift my personal take on the likely outcome of Viacom v. YouTube: I’m now in the camp of folks convinced this is headed for a business, out-of-court solution. It felt like if we’d had a bit more time and one of those “lawsuit whisperer” mediators, we could have had one today. (Of course, Mark and Zahavah were speaking in their personal capacities, not as official company representatives; yada yada.) Such an outcome might not have the imprimatur of judicial precedent, but might nevertheless have the same kind of domino-tipping impact on similar future disputes.
[tags: supernova2007; viacomvyoutube; intellectualproperty; copyright; socialmedia]
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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