Get ready for the Viacom v. YouTube summary judgment briefs

Thursday, March 4, 2010

Get ready for the Viacom v. YouTube summary judgment briefs

After nearly three years of discovery, the parties in the massive Viacom v. YouTube copyright suit will finally lay out their arguments on paper Friday, when opening briefs in support of summary judgment motions are due. Interested observers will finally get to see whether Viacom -- as well as the plaintiffs in the similar class action suit brought by the English Premier Soccer League, Bourne Music Publishers, and others -- has the goods on YouTube, or whether the video-hosting site will stay safely within the DMCA's Section 512(c) safe harbor. Did YouTube employees themselves upload infringing videos? What did they know about infringement on the site? How quickly do they respond to takedown notices? Did Viacom upload its own videos to YouTube, thus bolstering YouTube's arguments that it can't tell which videos are infringing, and so can't be expected to take them down without specific notice from copyright owners? Will Google have to dig into the reported $200 million it set aside to cover copyright liability when it bought YouTube in 2006? Tomorrow, we will likely get a little closer to the answers to these questions, and a lot more.

In the both the Viacom and Premier League cases, opening summary judgment briefs are due March 5, oppositions April 30, and replies June 4. In the Premier League case, the plaintiffs' motion for class certification is due March 26, YouTube's opposition May 7, and plaintiffs' reply June 11.

U.K. - New law could put block on YouTube

New law could put block on YouTube

Video-sharing websites such as You­Tube could be blocked in Britain after a last-minute change to a new law.

YouTube: could be hit by the controversial amendment to the Digital Economy Bill

They are facing a major clampdown on using copyright material under an amendment passed by the House of Lords.

The change grants TV and music companies the right to demand their material is taken down. If the request is refused, they can take their challenge to court, where high legal costs will make it pointless to launch a defence.

Critics say the Digital Economy Bill is a blow to web freedom and hands far too much power to big entertainment companies. They say the reasoning behind the amendment is ‘wholly misguided’.

Websites such as YouTube and its smaller rivals have long been under pressure for posting music videos, film and TV clips without consent.

The law could also affect services used for sharing large files, such as YouSendIt and Dropbox.

Under the new law, copyright holders must ask internet service prov­iders – comp­anies such as Virgin, BT, TalkTalk and Orange – and the website itself to remove the material or any links to other sites hosting it.

If it is not taken down, a court order can force the ISP to block the site.

The amendment is aimed at websites with ‘substantial’ amounts of copyrighted material. However, critics say the law, which is set to be passed in April, is unclear about what ‘substantial’ means and that it is unfair to block an entire site over a few minor breaches.

They say ISPs would simply shut out a site rather than risk the high legal costs of defending a case.

Jim Killock, executive director of the Open Rights Group, said: ‘ISPs are almost certain to cave into rights holders’ demands rather than go through a lengthy court process.

‘It’s hard on ISPs because they have no power to change what websites are doing but, if they block them, they could lose users.’

Nicholas Lansman, secretary-general of the Internet Service Providers Association, said: ‘Our members are extremely concerned that the full implications of the amendment have not been understood.’

Liberal Democrat peer Lord Clement-Jones, who put forward the amendment, said ISPs should have little cause for concern as an injunction would be granted only where a website had been warned repeatedly of copyright breaches.

Legal Guide for Bloggers

Updated Feb 11 2009
Whether you're a newly minted blogger or a relative old-timer, you've been seeing more and more stories pop up every day about bloggers getting in trouble for what they post.

Like all journalists and publishers, bloggers sometimes publish information that other people don't want published. You might, for example, publish something that someone considers defamatory, republish an AP news story that's under copyright, or write a lengthy piece detailing the alleged crimes of a candidate for public office.

The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you're doing is legal. And on top of that, sometimes knowing the law doesn't help - in many cases it was written for traditional journalists, and the courts haven't yet decided how it applies to bloggers.

But here's the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn't use the law to stifle legitimate free expression. That's why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.

To be clear, this guide isn't a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you're being threatened with a lawsuit. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected.

Please note that this guide applies to people living in the US. We don't have the expertise or resources to speak to other countries' legal traditions, but we'd like to work with those who do. If you know of a similar guide for your own jurisdiction or feel inspired to research and write one, please let us know. We can link to it here.

February 24th, 2010

Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship

Commentary by Fred von Lohmann

Let's say you are a blogger who writes about music regularly and includes links to music in your posts. How do you avoid having your blog censored off the Internet by "DMCA takedown notices" sent out by music industry lawyers (as happened last week to several blogs hosted by Blogger)?
Of course, you could get authorization from all the relevant copyright owners before you post or link to a song. Unfortunately, that's virtually impossible for many music bloggers. In some cases, it may be impossible to figure out who the copyright owners are (consider the problem of live concert bootlegs, rare B-sides, out-of-print material, defunct labels). In other cases, you might have authorization from someone, but it could end up being the wrong person (i.e., an independent promoter or member of the band who doesn't actually have all the rights to give you). And even if you get authorization from all the right people, you could still find yourself on the receiving end of a DMCA takedown from the entity that controls the copyright in another country (because your blog can be accessed from that country).

In other words, it's quite likely that many music bloggers can never be sure that a DMCA takedown notice won't arrive someday.

If one does arrive, your blog hosting service probably won't take your side. The law gives online hosting services strong incentives to comply with takedown notices—prompt responses to takedown notices are often the only reliable shield that hosting services have against copyright infringement lawsuits and potentially hundreds of thousands of dollars of damages. No matter how much your hosting service values your business, it is not likely that they will be willing to bet their business to save your blog.

While most hosting providers will let you send a "DMCA counter-notice" to contest a bogus takedown notice, sending a counter-notice can have serious consequences if you're not absolutely sure that you had all the necessary legal rights to post the songs or links in question. Sending a DMCA counter-notice is serious business, as it leaves the copyright owner with few options (other than suing) in order to keep the song down. So we recommend that bloggers research copyright law and, if in doubt, consult a qualified attorney (or contact EFF) before sending DMCA counter-notices.

The DMCA also gives hosting services strong incentives to "terminate repeat infringers." That's why most blog hosting services will delete your account (and thus your entire blog) after receiving multiple DMCA takedown notices. The industry norm seems to be a "3 strikes" policy, although the number of "strikes" can vary. This policy can be particularly unfair when a copyright owner sends multiple DMCA takedown notices all at once, or within a few days of each other — you can find your blog deleted before you even find out who was complaining or can send a DMCA counter-notice. Many hosting providers also mark every DMCA takedown notice on your "permanent record" — simply deleting the file or the link won't expunge the "strike" on your account (generally, only a DMCA counter-notice will do that). So a DMCA takedown notice received for your blog might still count as a "strike" years later (again, this is because service providers want to be able to tell a court that they were good about "terminating repeat infringers," lest they lose their shield against copyright infringement lawsuits).

Of course, you may be able to talk the copyright owner into withdrawing a DMCA notice ("your marketing department sent me an email saying this link was legit"). And there may be informal strategies that work most of the time (like deleting links after a short period of time). However, at the end of the day, it's nearly impossible to be sure you'll never receive a DMCA takedown notice.

With that in mind, here are a few practical things you can do to minimize the disruption that the DMCA process might inflict on your blog:

• Get your own domain name: Most blogging platforms will allow you to use your own domain name for your blog, which will make it easier for your readers to find you if DMCA takedown notices force you to change hosting providers. So, for example, if your blog is at YOURNAME.blogspot.com, and your account gets terminated, you probably will never be able to use that URL again. In contrast, if your blog were at www.YOURNAME.com, you could get a new account from another hosting provider and keep your URL the same. And don't register your domain through the same company that hosts your blog—that should reduce the risk that you'll find both your blog and your domain name deleted by your hosting provider in response to DMCA takedown notices.
• Back up your blog, be ready to move it: Make sure that whatever blogging platform you use, it allows you to easily back up your entire blog in a format that makes it easy to republish elsewhere. Have a game plan ready for migrating your blog to a new hosting service quickly if that becomes necessary.
• Make sure your hosting provider can reach you: If a copyright owner wants to send a DMCA takedown notice aimed at your blog, they will probably start by doing a reverse DNS look-up to figure out who is hosting it. So make sure that entity (whether it's a full-service blog hosting service like Blogger or a colo hosting your own server) knows how to reach you. Keep your email address up to date, be sure that messages from your blog hosting service are "white-listed" in any spam filters that you use.
• Choose a service that has clear DMCA policies: Not all hosting providers accept DMCA counter-notices—make sure yours does, just in case you need to use it. Ask your hosting provider how many "strikes" it takes before your account is terminated. Ask whether "strikes" drop off your account after a period of time. Generally, you're better off with a hosting provider that has thought about these questions and implemented clear policies.
• Study up a bit: A little studying up before hand can go a long way towards avoiding problem later. A good place to start is EFF's Legal Guide to Bloggers, which contains frequently asked questions about copyright, the DMCA process, and a host of other legal issues that bloggers might face. The Citizens Media Law Project at Harvard also has a great legal guide online.

Related Issues: Bloggers' Rights, DMCA, Intellectual Property, No Downtime for Free Speech Campaign

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