Updating Copyright from Tech’s Perspective

Originally posted 2016-10-12 12:31:13

logos_Lux_Law_Firm 2By Caroline Lau | amdlawgroup.com

Last week, Congress heard from leaders in various industries that provide creative, copyrighted content, such as businesses in film, music and photography. This Thursday on August 1, the same House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet listened to five technology companies present their assessments and opinions of the role of technology in innovation. In contrast with last week’s overarching push for stronger copyright protection, tech representatives advocated open source, and critiqued aspects of current copyright law. Notable speakers include IT hosting company Rackspace’s VP of Intellectual Property Van Lindberg and electronics retailer Sparkfun CEO Nathan Seidle.

In Lindberg’s testimony before the subcommittee, he raised the issue of the susceptibility of the Digital Millennium Copyright Act (DMCA) to abuse, especially by automated DMCA takedown requests executed by computer system programs designed to recognize copyrighted content. Lindberg brought to the subcommittee’s attention that this kind of computer program may recognize that certain content is copyrighted, but not that the content does not infringe with the permission of holders, leading to abuse of the fair intentions of the DMCA. He also cites purposeful filings of DMCA takedown requests, many of which aren’t copyright claims but are the actions of businesses against their competitors, resulting in unfair competition and impeding free speech.

Online infringement may be hard to prevent, but even discerning real infringement from fake is also daunting. Google’s most recent report indicates over 15 million URLs have been subject to takedown requests, and the company says it takes down 97% of requests. Twitter has also been receiving an influx of takedown requests, with statistics showing a 76% increase over the 6-month period beginning this year January 1, though it takes down 61% of requests. Finally, the copyright case between giant media company Viacom and Youtube, a Google subsidiary, demonstrates how the DMCA has been used in courts; Viacom’s lawsuit against Youtube has failed twice already in the past 7 seven years. The main issue is proving Youtube’s actual knowledge of infringing content on its video-sharing website. U.S. District Judge Louis Stanton ruled in April that Youtube is protected under the DMCA, specifically section 512(c) of the act which provides safe harbor for websites under several conditions, including if the service provider expeditiously removes infringing material upon knowledge or awareness of it.

Viacom applied to the Second Circuit Court of Appeals on July 26 for the remanding of a different judge to preside over the case. In their appellate brief, Viacom attacks the assertion that lacking proof for “clip-by-clip assessment of actual knowledge” according to Judge Stanton renders their suit dismissible, stating that when “the service provider deliberately avoids learning the location of specific infringing Daily Show clips [for example], then under the [judge]’s reading the service provider is not willfully blind.” Instead, this “deliberate ignorance” Viacom points to is, in the company’s opinion, deserving of trial.

Adjudicating what constitutes sufficient legitimate evidence of copyright infringement in this tech era is a problematic area, seeing as excessive takedowns currently coexist with the persistence of copyright violating content online. A different tack in addressing copyright has been offered by tech industry representatives. From the tech forum before Congress, Nathan Seidle of Sparkfun explicated the benefits of open source engineering, while Lindberg  promoted open source technology, the underlying idea being that open source creates jobs, business, and drives innovation—things copyright protection has always claimed to do.

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The Hollywood Reporter. (July 30, 2013). “Viacom Demands New Judge in Youtube Copyright Fight.” Retrieved on August 2, 2013 from http://www.hollywoodreporter.com/thr-esq/viacom-demands-new-judge-youtube-595471

The Hollywood Reporter. (April 18, 2013). “Youtube Again Beats Viacom’s Massive Copyright Infringement Lawsuit.” Retrieved on August 2, 2013 from http://www.hollywoodreporter.com/thr-esq/youtube-again-beats-viacoms-massive-442233

GigaOM. (August 2, 2013). “Rackspace helps school Congress on copyright and open source.” Retrieved on August 2, 2013 from http://gigaom.com/2013/08/02/rackspace-helps-school-congress-on-copyright-and-open-source/


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