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Jay Parkhill December 5th, 2006

The AP reports that the Japan Society for Rights of Authors, Composers and Publishers has sent YouTube a request to implement a pre-post (and yes, official news sources also use the oxymoronic term “pre-post”) review process to ensure that no Japanese copyright-infringing material is posted to the video site.

This is interesting for a few reasons. First, the request comes within a month of YouTube’s removal of something like 30,000 Japanese clips at the request of the same organization. A quick search of the site comes up with roughly 40 copies of a Matrix-parody ping pong game from a Japanese TV show (very funny, by the way), suggesting that last month’s takedown may have bailed some of the standing water, but did nothing at all to stem the flow. This is not at all surprising, of course.

The really interesting point is how the Japanese request points toward a conflict between the DMCA’s notice-and-takedown rules and the IP protection rules used in other parts of the world. The DMCA was enacted by the US Congress as part of the US’s accession to two WIPO treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). Notice and takedown, however, is not part of either treaty. US legislators developed that piece during the process of adding the treaties’ principles to US law.

Japan is one of 60 countries that have signed the WCT and 58 to sign the WPPT. However, as review of the list of signatories shows, just over a third of signing countries have ratified the treaties (never mind codifying the provisions into national law). Japan is conspicuously absent from the list, as is nearly all of Western Europe.

What does this mean for businesses relying on the DMCA’s notice-and-takedown safe harbors? It means that as contentious as that process is within the US (witness Universal Music Group’s lawsuits against Grouper and Bolt, and the latter companies’ vehement defense that they have complied with the DMCA throughout), it pales in comparison to what may happen when copyright-dependent US-based websites start to take off in other countries. Notice and takedown loses its power as an affirmative defense and is reduced to a mere symbol of good faith in trying to protect copyright. Where violations are rampant, as on YouTube, and local tribunals are likely to be sympathetic to home-country plaintiffs, it makes me start to wonder if the ~$200M holdback from the YouTube merger consideration will be enough to cover all claims everywhere.

• DMCA , Intellectual Property , Web , YouTube

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.

• Copyright , DMCA

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.

• Copyright , DMCA , Intellectual Property