Jay Parkhill September 5th, 2007
Sometimes napkins make good visualization tools too. No animation in this one, but patent lawyer Erik J. Heels did a bang-up job simplifying a complex topic to a single sheet of paper (it might not have actually been a napkin). 
Erik explains it all here.
Jay Parkhill August 8th, 2007
I recently tuned in to Barack Obama and John Edwards’ Twitter feeds, which offer somewhat interesting, informal glimpses of the candidates. Shortly after, I discovered what is really a fake Bill Clinton Twitter feed. Someone reserved the BillClinton user name and posts asinine garbage that might be malicious if it actually had any relevance to anything.
Still, this got me thinking about “user name squatting”. It is pretty well established that someone with a “famous” name can oust a squatter from a domain name, but I wonder if they same is true of user names on social networks? If I went around and registered “RudyGiuliani” (to pick a famous and unusual name), would he have rights against me? My gut tells me that the larger the platform, the more likely name-squatting would be deemed impactful on the famous person (e.g. Mr. Giuliani). I also suspect that the nature of the platform would be relevant as well- fake Rudy Giuliani on MySpace is potentially more damaging to the candidate than fake Rudy Giuliani on Digg.
I’m going to poke around a little on this one to see if anyone has actually tried to bring “user name squatting” actions. I’ll update if I find anything interesting.
Jay Parkhill July 20th, 2007
Intellectual property lawyer Erik J. Heels coined a new term that I really like: “copyjacking“. More commonly known as “hotlinking”, it refers to the practice of embedding content from another website in order to use the content, but save on bandwidth charges.
I like it because hotlinking isn’t necessarily bad and it is useful to distinguish the bad kind of hotlinking from the good kind. YouTube (and loads of other video sites) encourages users to embed video content on non-YouTube domains. As an example of the bad kind (i.e. copyjacking) Erik takes Freakonomics to task for habitually linking inline to images hosted elsewhere without attribution or apparent permission.
I love this term. What I love even more is that unlike many legal issues there is a sure-fire way to get people to stop the practice- change the image on the host end to something less desirable, such as happened to John McCain last spring.
Jay Parkhill July 17th, 2007
I wrote a piece for Found|Read on how contract professionals can write service agreements that let them develop specific work product without handing over their their toolsets to clients. I have definitely worked on both sides of this issue and it can be sensitive. “Residuals” and generalized tools and methods are pretty fuzzy concepts. It takes care and specificity to be sure each side understands what is being delivered to the client and what isn’t.
Jay Parkhill March 26th, 2007
I have just finished reading the opinion in the Twentieth Century Fox v. Cablevision case from the Southern District of New York and boy, is it ever a stinker (to use the legal jargon).
Briefly, Fox sued Cablevision for setting up a “network digital video recorder”, a device that operates like a DVR, but uses equipment sitting in Cablevision’s facility rather than in a box in the consumer’s house. The court held that such a system violates Fox’s copyrights in its programming because Cablevision both copies and transmits the content to consumers without the proper licenses from Fox.
My first thought on reading the case was that it focused on extremely technical details only to reach a completely anachronistic ruling. In the age of Software as a Service, we have all gotten pretty used to the idea that technology can be administered remotely. We don’t need to have the set-top box, many of us may be happy not to have to plug yet another device into our TVs, and the end result for consumers is exactly the same. As Sherwin Siy notes, the main difference is the length of the cable.
Unfortunately, the more I think about it, the more it seems like it is the Copyright Act that has it wrong these days. Distinctions that used to matter no longer make a difference.
The court talked extensively about the fact that Cablevision was “transmitting” the content. Cablevision tried to argue that the consumers were actually doing the transmitting when they choose which programs to watch, but it doesn’t take much to see that argument as a loser.
A little tricker was Cablevision’s similar line of reasoning that consumers actually do the “copying” as well, another basis for finding copyright infringement. Consumer-copiers can rely on a fair use exception for home use of content, but Cablevision can’t. The court really didn’t like this argument either. It left the door open a crack based on Cablevision’s complex N-DVR architecture, but held that the copies were made on Cablevision equipment maintained by Cablevision personnel in Cablevision facilities, so Cablevision was really the copier.
The place where it all starts to come apart is where the court tries to distinguish “devices” from “services”. Sony’s Betamax is the precedent-setting case here, from 1984. Consumers could install a Betamax machine and have nothing further to do with Sony. The court found that the N-DVR was nothing like a Betamax, because consumers subscribed to the “service” to get the DVR functions.
Of course, this is only a hair removed from every other type of DVR, including the Tivo in my house. Sure, I record content onto my Tivo within the walls of my own house, but my “device” would be useless without the “service” that tells my Tivo what is on which channels.
My own belief is that the judge realized this and the focus on technical operation was his attempt to confine his ruling to the narrow N-DVR issue in front of him rather than come out of left field with an opinion that could be read to say every DVR everywhere (and probably VCR+ scheduling codes as well) are copyright-infringing.
The scorecard, then, is something like this:
Judge Chin gets the law right, even if he doesn’t seem to like the result.
Prof. Eric Goldman sums up the issues nicely.
Mark Cuban gets it right for sure when he says Fox is far better off distributing content this way than to see it pirated, or just losing the distribution channel entirely as the Internet changes video progamming models.
Copyright law is the big loser for foisting arbitrary rulings like this on consumers. Trying to draw a line between hardware and software isn’t going to make for happy caselaw.
Jay Parkhill February 6th, 2007
Napster was the original user-generated content company. It was shut down in 2001, of course, after the Recording Industry Association of America sued the company for maintaining a database of songs that anyone could download without paying royalties or otherwise respecting copyright law.
A host of new file-sharing companies then rose up that didn’t maintain their own song databases. The RIAA sued several of those companies as well, resulting in the important Grokster decision by the US Supreme Court in June 2005. Grokster held that companies can be found liable for copyright infringement by distributing a “device” with the clear intent to promote infringement, as shown by affirmative steps to promote infringement. While these actions certainly didn’t put an end to illegal music file sharing, the battle lines are at least clear now in the music world.
Video is a different matter. Online video sharing has grown along a different trajectory and the issues there are overlapping, but distinct. Events over the past year have led me to believe that some businesses have taken the lessons of Napster/Grokster to heart, while others have not.
YouTube
The biggest non-learner of them all in both size and non-learningness. (There are a myriad other video sharing sites that feature copyright-infringing content just as prominently, so I will use YouTube here as a stand-in for all of them.) YouTube’s business is even more Napster than Napster itself: at least the latter company declined to host content. YT both hosts and indexes all of its videos. Its only hope for salvation is to appease the movie studios in a hurry (witness its rush to remove 100k videos two days following a demand from Viacom) while it desperately scrambles for a non-infringement-dependent business model. No wonder Google made a big public statement about keeping YT as a separate entity- bringing it in too close to Google’s core might expose Google to spillover liability.
Grouper
Here is a great example of an anti-YouTube. Founder Dave Samuel told me that staying on the right side of copyright was a critical piece of the puzzle from inception. Copyright violations may exist on the site, but they are much harder to find. Unfortunately, Grouper’s traffic is also a drop in the bucket compared to YT, which probably says a lot about what the market wants to watch.
Jumpcut
Another site that doesn’t depend on copyright violation, Jumpcut cleverly tries to focus users’ attention away from “pre-consumed” media grabbed from other places and toward the videos consumers themselves produce on digital cameras and phones. Jumpcut’s editing tools make it easy to cut and edit short clips, and their copyright-friendly position no doubt helped them to win content deals with Warner Brothers and Fox, and also to be acquired by Yahoo. Again, copyright infringement is relatively rare, and the focus on user-shot video makes an easy argument that the site lacks a “clear intent to promote infringment” under the Grokster standard. Jumpcut was acquired only six months after launch, so they have some time to figure out whether the public really wants to watch home video clips in significant numbers.
BitTorrent
The backbone of many filesharing applications, Bittorrent sees the spigot slowly closing on pirated content and is trying hard to find an infringement-free business model itself. It cut its own deal with Warner Brothers in May 2006 that led to more deals during the year. These moves are helping the company remake itself from the pirate’s best friend to a smart way for companies to save on bandwidth costs and promote content virally. This might be a stroke of brilliance from Bram Cohen and crew: BitTorrent’s history makes for a near slam-dunk case of clearly promoting infringement, so the company’s best bet is to make itself so useful to the studios that they couldn’t bring the hammer down without hitting their own thumbs.
Jay Parkhill January 9th, 2007
I recently authored a case study of Grouper Networks, a popular video hosting website acquired last summer by Sony. You can click here to read the study, which looks at Grouper’s history, launch strategy and important success factors, including its emphasis on copyright-legal videos and its simultaneous pursuit of consumer-facing and white label distribution.
Jay Parkhill January 4th, 2007
I have previously posted on Youtube’s pending overseas problems, as well as the problem with notice-and-takedown rules for copyright violations in the user-generated content world. Apparently, the ex-wife of soccer star Ronaldo was filmed having sex, and copies of the video made it onto YouTube. Reuters reports that the plaintiff, Daniela Ciccarelli, demanded that YouTube remove the video and that YouTube did so, but users promptly re-uploaded it.
The court’s most recent ruling was that YouTube must shut down until it is able to comply with the demand to remove all copies of the video, though Reuters dryly notes that enforcement of the order in US courts could be difficult.
I doubt Google has a great deal of concern that YouTube may actually be forced to shut down. At the same time, it is conceivable that YouTube could face sanctions in Brazil for failing to comply with the order. Add in the Japanese issues and a pattern seems to be in the making. At a certain point the collective weight of overseas litigation seems likely to go from headache-inducing to big trouble. It will definitely be interesting to see how matters unfold.
Jay Parkhill November 21st, 2006
Last week’s viral video phenomenon featured a BofA manager who moonlights as a rock singer performed a take-off of U2’s “One” at a sales conference in which he changed the lyrics to hype the bank and its salespeople. This was noteworthy only for the fact that the singer, Mr. Ethan Chandler, is actually pretty good- until a video of the performance was posted to YouTube. Hits to the video took off and the episode culminated in Johnny Marr performing the BofA version of the song at a Modest Mouse concert in New York.
Universal Music, who has been on a tear recently in going after alleged copyright violators & scooping up revenue from every Zune player sold, promptly jumped all over the BofA homage. The piece of the story I find most amusing is that Universal’s lawyers (represented by Raul Gonzalez, Esq.) decided it was not enough merely to send private cease-and-desist letters to people hosting the site- they posted the letter in the comments under a copy of the video on Stereogum.com.
Cynical minds might ask why no similar letter had been posted under the copy on YouTube, at least until such minds are reminded that Universal now owns a piece of Google thanks to the YouTube-Google merger. In a single move, Universal gets to pound its copyright soapbox and harass a YouTube competitor. Pretty clever, except for the fact that just about no one had ever heard of Stereogum, and now they have.
Jay Parkhill November 15th, 2006
On re-reading the Summary Judgment ruling in the LA Riots video case, I noticed another gem. The ruling describes one of the issues in the case as whether the notice and take-down remedy in the DMCA is effective. Apparently YouTube did take down the video, only to see it promptly re-posted by numerous other users.
The era of mass user-generated content was merely a gleam in the eyes of a few visionaries when the DMCA was adopted. It will be interesting to see how effective its procedures are at preserving copyright when anyone and everyone can upload their own copies of just about any material.