Viacom v. YouTube

Analysis Of Google And Viacom’s Arguments Over YouTube: A Lot Of He Said/She Said | Techdirt is a nice analysis of the Viacom v. Google copyright infringement suit as it currently stands. The article leans heavily toward Google’s side of the argument.

Viacom vs. YouTube Unsealed! YouTube’s Steve Chen on Copyrighted Content: ‘Steal It!’ is a nice analysis of Viacom v. Google. The article leans heavily toward Viacom’s position.

This case tests the Title II of the Digital Millenium Copyright Act (DMCA), the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides ISPs with a “safe harbor” from a copyright infringement suit provided the ISP follows the guidelines. In the current case, Viacom, a motion picture studio that has produced many popular films, has sued YouTube, an ISP that hosts user-posted video content, some of which is taken directly from Viacom’s movies. YouTube is using OCILLA to say it has no responsibility to Viacom after following the statutory guidelines.

The question is whether YouTube actually followed the safe harbor guidelines. To get to that answer, the case must determine just how much knowledge of infringement on the part of the ISP is too much knowledge. Should YouTube, sua sponte, have taken down the copyrighted materials even before Viacom complained to them about the infringement by YouTube users?

The two blog posts cited here give you the summary judgment motions of both parties

Me, I tend toward Viacom’s side in this one. The presence of what I know to be copyrighted materials on YouTube has always bugged me.

Scoff at copyright law at your peril…

More trouble ahead for copyright scofflaws – Ask the Editors | Tri-City Herald : Mid-Columbia news .

The RIAA cases may have ground to a slow halt, but that does not mean that the copyright laws are to be ignored.

The Associated Press v. All Headline News case in New York settled with an undisclosed settlement payable to AP for the unauthorized use of AP stories and headlines by All Headline News. This case stresses the doctrine, first established by the US Supreme Court in 1918, that facts cannot be copyrighted but “hot news” gives a publisher the right to sue and collect damages even on facts.

In Europe, publishers have renewed their outcry for tough copyright laws protecting written materials as the publishers consider that the internet may provide them with additional streams of revenue.

Remember, in the US, the only two factors in a copyright infringement suit that plaintiff must prove are (1) a valid copyright exists and (2) a substantially similar copy exists. That’s it. No intent need be shown. No money need change hands. Copyright infringement is strict liability land. And damages are stiff.

Ain't No Plagiarism in Harry Potter Says Publisher – Yahoo News

Ain’t No Plagiarism in Harry Potter Says Publisher – Yahoo News.

Hmm. Copyright infringement and plagiarism seems to be coming out of my ears these days. Here the plagiarism, if found, would be for the general plot line. Harry Potter fought in the Triwizard Tournament and rode the Hogwarts Express (a train); the claimant’s wizard was a hostage and rode a train. The claimant’s book is The Adventures of Willy the Wizard No. 1, Livid Land.

The grounds for copyright infringement in the US are: (1) a valid copyright, which the estate of Adrian Jacobs may indeed have; and (2) a SUBSTANTIALLY similar work, which is where I think the estate falls flat. Lots of characters are held hostage and ride on trains. Not so many characters are wizards, but surely a wizard riding on a train and getting into a hostage situation … plagiarism?? Harry does many, many things besides ride on the train and get into a hostage situation.

The Hogwarts Express entered the Harry Potter lexicon with the first book. So did Voldemort … and Voldemort took a hostage in the second book (a witch named Ginny Weasley). The fourth book,  which all the hoopla is about, was published in July, 2000. I will point out that it’s now 2009; the book has been around for awhile. Why the wait to sue, Plaintiff?

Seems to me that this is one of the more stupid lawsuits. Best wishes to Rowling defending this one; it shouldn’t be too tough to do.

Justice Dept. Seeks Details On Google Deal – washingtonpost.com

Justice Dept. Seeks Details On Google Deal – washingtonpost.com.

After several years of fighting a large copyright issue, the GOOGLE v. Publishers and Authors suit settled out for about $125 million. The deal they struck is that GOOGLE gets to continue putting together its online library and the publishers and authors go away compensated for their copyright interests.

It turns out that it’s not that easy. In comes the US Justice Department. The DOJ is investigating the GOOGLE/publishers-and-authors deal with an eye toward finding an antitrust violation hidden somewhere in that deal.

It is true that the deal would make GOOGLE the leading online source of books — after all, it ain’t Yahoo scanning in those millions of titles from the large repositories. However, there is nothing that I know of in the deal to prevent Yahoo, or anyone else, from also reaching a deal with the authors and publishers and scanning in the works to compete with GOOGLE; GOOGLE just happens to be the first kid on the block to come up with this notion. This is a deal that was reached between these particular litigants to allow a project that could be of significant benefit to the whole world to go forward.

Now, I’m sure there’s something here that I don’t know about, but antitrust? Where’s the restraint of trade?

Facebook Repeals Copyright Plan – I4U News UK

Facebook Repeals Copyright Plan – I4U News UK.

The Public Has Spoken.

Facebook put new Terms of Service into effect on its website a couple of weeks ago. Those terms basically said that Facebook has a royalty-free license forevermore to use for any purpose anything that any user posts on the site.

The users roared loudly enough to get the Facebook IP lawyers to listen. They’ve backed down on that one now.

Way to go, Facebook Users!

Apple: iPhone jailbreaking violates our copyright | Apple – CNET News

Apple: iPhone jailbreaking violates our copyright | Apple – CNET News.

Apple may be making a large mistake.

While the debate itself — whether “jailbreaking,” or enabling an iPhone to accept and use non-Apple apps, is copyright infringement — is intellectually interesting, at the end of the day Apple’s insistence that jailbreaking constitutes infringement could land it in deep water in terms of its market share and popularity with the public.

The recent public-relations fiasco that the Recording Industry Association of America (RIAA) brought down upon itself with its bulk lawsuits against infringing music downloaders is a case in point. Those lawsuits are absolutely supported by the copyright laws; however, the overzealousness with which they were pursued resulted in a steep drop in RIAA’s credibility. I have clients, friends and acquaintances who now pay close attention to music labels and boycott the RIAA because of these lawsuits. RIAA woke up and has stopped the wholesale suing of individuals who download their copyrighted music (they enforce through ISPs now … it’ll be interesting to see if/how that works).

Apple’s refusal to open up its technology so that others can develop and distribute applications has landed it in the Unpopular pile before. It lost the battle for supremacy in the marketplace for its computers through this policy; that’s too bad, too, since Windows is a pale imitation of the Mac interface. I guess Apple didn’t learn its lesson.

The iPhone is a Cool Gadget, but it is not the only Cool Gadget out there; other phones, with similar prices but more permissive licenses, distinctly outrank the iPhone in sales. And that would be because … ? Oh. Right. Users can get software from anywhere for their phones without jailbreaking.

Wake up, Apple, and smell the coffee. Sharing Is Good and Helps Maintain Market Share. I’d hate to see you go under through misguided and overzealous protection of your IP.

And this comes from a copyright lawyer who uses a Mac. But not an iPhone.

The Obama Image

 

 

Obama Hope Image Subject of Fair Use Lawsuit

 

No, I’m not going off-topic again; I’ve gotten over it.

We’ve all seen the image of President Obama, and by now we all know where that image came from — a photo taken by AP photographer Mannie Garcia in 2006, munged into the Hope poster by Shepard Fairey and used throughout the Obama campaign.

17 USC 107 controls fair use under the copyright law of the US. Was the use of the AP picture in the Hope poster fair use under the law? That’s what the US District Court for the Southern District of New York (SDNY) has been asked to determine. The AP has sued Fairey in the copyright court — the SDNY, sitting in New York City is in the heart of the publishing industry, the SDNY has a lot of copyright jurisprudence to guide it in making such a decision.

Fair use is a gray area of the law, at best. The statute, ever so helpfully, gives us a test that can be applied to questions of fair use, but at the end of the day it’s the judge’s sense of justice that determines the outcome of the case.

It will be interesting to see where this case goes. The Hope poster is political speech, probably the most protected speech under the First Amendment; the image, though, is clearly a derivative work of the AP photo.

Who will win? Who can tell?

You Think U.S. Copyright Law is Bad? | PlagiarismToday

You Think U.S. Copyright Law is Bad? | PlagiarismToday.

Well, I guess friends can agree to disagree. I disagree with the first paragraph of the article in this link. I must clarify, though, that I absolutely agree that the general conclusion is that US copyright law is probably among the best and most fair copyright laws in the world.

Here’s the first paragraph, with which I take issue:

“The United States definitely has its share of copyright issues. We have a very powerful copyright lobby that, among other things, has been able to obtain a seemingly never-ending series of copyright extensions that have kept ever-older works out of the public domain. We’ve been ground zero for the music industry’s lawsuits against file sharers and were also among the first to pass the controversial anti-circumvention laws that prohibit users from circumventing DRM schemes, even for otherwise legal uses.”

I don’t see any of the “issues” cited as issues at all; I see them as benefits under US copyright law.

The Rule Against Perpetuities Supports 100 Years of Copyright Protection After the Death of the Author

 The “never-ending series of copyright extensions” lasts for approximately 100 years after the death of the author (or 120 years from the date of creation of the work if an entity other than a human being is the author). Yes, this seems like a long time. Yes, J.K. Rowling’s great-great-grandchildren will benefit from the HARRY POTTER derivative works and sales made under US copyright law. Yes, derivative works can keep copyright alive far longer than the copyright will live in the original works. But that’s ok. Authors should have full benefit of their works, just as they should have full benefit of other personal property, and one “full benefit” is the ability to will the copyright — a form of personal property — to one’s heirs.

Actually, that almost-century of copyright protection from the date of death of the author falls pretty well within the Rule Against Perpetuities; that rule, generally studied in the law of property, states that “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest.”

Huh?

Let’s see if I can simplify this.

No interest — copyright passed in trust to heirs is the interest in question here — is good (in other words, the copyright is invalid) unless it must vest, if at all — the interest has to come to an end — not later than 21 years after some life in being — that can be a newborn baby; a “life in being” is a human life (sorry, sequoia acorns don’t count) — at the time of the creation of the interest — when the copyright enters into a trust for the benefit of heirs of the author.

A newborn baby who receives a lifetime of proper medical care can easily be expected to live for 79 years in today’s world; we see lots of octogenarians, somewhat fewer nonogenarians and more and more century-old people. Therefore, if a copyright enters into a trust estate on the day after the baby is born (that is, the copyright holder dies on the day after the baby’s birth) and the copyright goes into a trust based on the life of the new baby, then this Rule Against Perpetuities would require the trust to terminate 21 years after the new baby dies. We assume the new baby dies at age 79; 79 years from the “creation of the interest” +21 years from the end of the “life in being” = 100 years.

Under the Rule Against Perpetuities, copyright lasting for 100 years after the death of the author seems fine to me. Copyright is personal property, just like money is. It should follow the basic rules of property, one of which is the Rule Against Perpetuities. I therefore disagree with the author that a shortened copyright term is called for. However, should the term be lengthened further, extending it beyond the normal Rule Against Perpetuities, I would very likely join the ranks of dissidents who would vote to keep the extension of copyright within the Rule Against Perpetuities.

The Music Industry’s Lawsuits

Kazaa lists. These are the bane of the existence of lawyers who defend infringing internet account holders. They are the godsend to the lawyers who represent the plaintiffs in the music industry suits. Kazaa.com makes lists of downloaded music based on internet account available to the plaintiffs in the music industry suits. They are good lists. They are taken as strong evidence of infringement; more than that, they can be taken as strong evidence of intentional infringement.

I’ve defended a few of these suits. Generally, the music industry slaps (hard, but not nearly as hard as they could) on the wrist of the infringer (usually, actually, the infringer’s parents). These suits generally settle out for somewhere between $2000 and $10,000, depending on the amount of music infringed. While we can certainly mount defenses in litigation, at the end of the day there’s really not a lot that can be done to defend the downloading of “free” music or movies. The evidence on the side of the plaintiff is strong and generally it’s best to settle for a relatively small sum than it would be to get hit with the whole truckload of damages that comes with a jury finding of intentional copyright infringement.

The message of these lawsuits is Pay As You Go. It’s a valid message. If downloaders would simply pay the 99¢ for the song or the $9.99 for the movie, the whole mess would be averted; the music industry would have nothing to sue over. But no; we have to get something for “free.” Well, in getting music or movies for free, we steal from the artists who wrote the song or sang the song or played the song or made the movie. Is it right for wholesale theft to go unnoticed? I don’t think so. The music industry uses what it defenses against this thievery — civil lawsuits — to discourage people from stealing their intellectual collateral and decimating the lives of the artists who created the works.

The Anti-Circumvention Law Properly Protects Holders of Copyright in Digital Media

This is from the Digital Millenium Copyright Act (DMCA), the law that, among other things, prevents someone from building around a technology that protects and controls access to a work protected under the Copyright Act. Section (a)(1)(B) of this law carves out an exception for “persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, …” Does that support the author’s claim that the DMCA “prohibit[s] users from circumventing DRM schemes, even for otherwise legal uses”? Once again, I don’t think so. Seems to me that this section carves out the very exception that the author states is not contained in the law.

The author cites an opinion about the law, not the law itself; the law itself says something quite different from what the author says about the opinion about the law. This is the danger of citing sources that are not the original.

The anti-circimvention law is found at 17 USC 1201. It says, in full:

Sec. 1201. Circumvention of copyright protection systems 

  • (a) Violations Regarding Circumvention of Technological Measures.
    • (1)
      • (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.
      • (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).
      • (C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding on the record for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine –
        • (i) the availability for use of copyrighted works;
        • (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes;
        • (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
        • (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and
        • (v) such other factors as the Librarian considers appropriate.
      • (D) The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.
      • (E) Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph.
    • (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –
      • (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
      • (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
      • (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
    • (3) As used in this subsection –
      • (A) to ”circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
      • (B) a technological measure ”effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
  • (b) Additional Violations. –
    •  
      • (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
      • (B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
      • (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
    • (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –

    • (2) As used in this subsection –
      • (A) to ”circumvent protection afforded by a technological measure” means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
      • (B) a technological measure ”effectively protects a right of a copyright owner under this title” if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.
  • (c) Other Rights, Etc., Not Affected. –
    • (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
    • (2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
    • (3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
    • (4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.
  • (d) Exemption for Nonprofit Libraries, Archives, and Educational Institutions. –
    • (d) (1) A nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work for the sole purpose of engaging in conduct permitted under this title shall not be in violation of subsection (a)(1)(A). A copy of a work to which access has been gained under this paragraph –
      • (A) may not be retained longer than necessary to make such good faith determination; and
      • (B) may not be used for any other purpose.
    • (2) The exemption made available under paragraph (1) shall only apply with respect to a work when an identical copy of that work is not reasonably available in another form.
    • (3) A nonprofit library, archives, or educational institution that willfully for the purpose of commercial advantage or financial gain violates paragraph (1) –
      • (A) shall, for the first offense, be subject to the civil remedies under section 1203; and
      • (B) shall, for repeated or subsequent offenses, in addition to the civil remedies under section 1203, forfeit the exemption provided under paragraph (1).
    • (4) This subsection may not be used as a defense to a claim under subsection (a)(2) or (b), nor may this subsection permit a nonprofit library, archives, or educational institution to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, component, or part thereof, which circumvents a technological measure.
    • (5) In order for a library or archives to qualify for the exemption under this subsection, the collections of that library or archives shall be –
      • (A) open to the public; or
      • (B) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.
  • (e) Law Enforcement, Intelligence, and Other Government Activities. – This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term ”information security” means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.
  • (f) Reverse Engineering. –
    • (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
    • (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
    • (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.
    • (4) For purposes of this subsection, the term ”interoperability” means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.
  • (g) Encryption Research. –
    • (1) Definitions. – For purposes of this subsection –
      • (A) the term ”encryption research” means activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products; and (B) the term ”encryption technology” means the scrambling and descrambling of information using mathematical formulas or algorithms.
    • (2) Permissible acts of encryption research. – Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure as applied to a copy, phonorecord, performance, or display of a published work in the course of an act of good faith encryption research if –
      • (A) the person lawfully obtained the encrypted copy, phonorecord, performance, or display of the published work;
      • (B) such act is necessary to conduct such encryption research;
      • (C) the person made a good faith effort to obtain authorization before the circumvention; and (D) such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud and Abuse Act of 1986.
    • (3) Factors in determining exemption. – In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include –
      • (A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security;
      • (B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and (C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided.
    • (4) Use of technological means for research activities. – Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to –
      • (A) develop and employ technological means to circumvent a technological measure for the sole purpose of that person performing the acts of good faith encryption research described in paragraph (2); and (B) provide the technological means to another person with whom he or she is working collaboratively for the purpose of conducting the acts of good faith encryption research described in paragraph (2) or for the purpose of having that other person verify his or her acts of good faith encryption research described in paragraph (2).
    • (5) Report to congress. – Not later than 1 year after the date of the enactment of this chapter, the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly report to the Congress on the effect this subsection has had on –
      • (A) encryption research and the development of encryption technology;
      • (B) the adequacy and effectiveness of technological measures designed to protect copyrighted works; and (C) protection of copyright owners against the unauthorized access to their encrypted copyrighted works. The report shall include legislative recommendations, if any.
  • (h) Exceptions Regarding Minors. – In applying subsection (a) to a component or part, the court may consider the necessity for its intended and actual incorporation in a technology, product, service, or device, which –
    • (1) does not itself violate the provisions of this title; and (2) has the sole purpose to prevent the access of minors to material on the Internet.
  • (i) Protection of Personally Identifying Information. –
    • (1) Circumvention permitted. – Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure that effectively controls access to a work protected under this title, if –
      • (A) the technological measure, or the work it protects, contains the capability of collecting or disseminating personally identifying information reflecting the online activities of a natural person who seeks to gain access to the work protected;
      • (B) in the normal course of its operation, the technological measure, or the work it protects, collects or disseminates personally identifying information about the person who seeks to gain access to the work protected, without providing conspicuous notice of such collection or dissemination to such person, and without providing such person with the capability to prevent or restrict such collection or dissemination;
      • (C) the act of circumvention has the sole effect of identifying and disabling the capability described in subparagraph (A), and has no other effect on the ability of any person to gain access to any work; and (D) the act of circumvention is carried out solely for the purpose of preventing the collection or dissemination of personally identifying information about a natural person who seeks to gain access to the work protected, and is not in violation of any other law.
    • (2) Inapplicability to certain technological measures. – This subsection does not apply to a technological measure, or a work it protects, that does not collect or disseminate personally identifying information and that is disclosed to a user as not having or using such capability.
  • (j) Security Testing. –
    • (1) Definition. – For purposes of this subsection, the term ”security testing” means accessing a computer, computer system, or computer network, solely for the purpose of good faith testing, investigating, or correcting, a security flaw or vulnerability, with the authorization of the owner or operator of such computer, computer system, or computer network.
    • (2) Permissible acts of security testing. – Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to engage in an act of security testing, if such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud and Abuse Act of 1986.
    • (3) Factors in determining exemption. – In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include –
      • (A) whether the information derived from the security testing was used solely to promote the security of the owner or operator of such computer, computer system or computer network, or shared directly with the developer of such computer, computer system, or computer network; and
      •  (B) whether the information derived from the security testing was used or maintained in a manner that does not facilitate infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security.
    • (4) Use of technological means for security testing. – Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to develop, produce, distribute or employ technological means for the sole purpose of performing the acts of security testing described in subsection (2),  provided such technological means does not otherwise violate section  (a)(2).
  • (k) Certain Analog Devices and Certain Technological Measures. –
    • (1) Certain analog devices. –
      • (A) Effective 18 months after the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in any –
        • (i) VHS format analog video cassette recorder unless such recorder conforms to the automatic gain control copy control technology;
        • (ii) 8mm format analog video cassette camcorder unless such camcorder conforms to the automatic gain control technology;
        • (iii) Beta format analog video cassette recorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 1,000 Beta format analog video cassette recorders sold in the United States in any one calendar year after the date of the enactment of this chapter;
        • (iv) 8mm format analog video cassette recorder that is not an analog video cassette camcorder, unless such recorder conforms to the automatic gain control copy control technology, except that this requirement shall not apply until there are 20,000 such recorders sold in the United States in any one calendar year after the date of the enactment of this chapter; or
        • (v) analog video cassette recorder that records using an NTSC format video input and that is not otherwise covered under clauses (i) through (iv), unless such device conforms to the automatic gain control copy control technology.
      • (B) Effective on the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or otherwise traffic in –
        • (i) any VHS format analog video cassette recorder or any 8mm format analog video cassette recorder if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the automatic gain control copy control technology no longer conforms to such technology; or
        • (ii) any VHS format analog video cassette recorder, or any 8mm format analog video cassette recorder that is not an 8mm analog video cassette camcorder, if the design of the model of such recorder has been modified after such date of enactment so that a model of recorder that previously conformed to the four-line colorstripe copy control technology no longer conforms to such technology. Manufacturers that have not previously manufactured or sold a VHS format analog video cassette recorder, or an 8mm format analog cassette recorder, shall be required to conform to the four-line colorstripe copy control technology in the initial model of any such recorder manufactured after the date of the enactment of this chapter, and thereafter to continue conforming to the four-line colorstripe copy control technology. For purposes of this subparagraph, an analog video cassette recorder ”conforms to” the four-line colorstripe copy control technology if it records a signal that, when played back by the playback function of that recorder in the normal viewing mode, exhibits, on a reference display device, a display containing distracting visible lines through portions of the viewable picture.
    • (2) Certain encoding restrictions. – No person shall apply the automatic gain control copy control technology or colorstripe copy control technology to prevent or limit consumer copying except such copying –
      • (A) of a single transmission, or specified group of transmissions, of live events or of audiovisual works for which a member of the public has exercised choice in selecting the transmissions, including the content of the transmissions or the time of receipt of such transmissions, or both, and as to which such member is charged a separate fee for each such transmission or specified group of transmissions;
      • (B) from a copy of a transmission of a live event or an audiovisual work if such transmission is provided by a channel or service where payment is made by a member of the public for such channel or service in the form of a subscription fee that entitles the member of the public to receive all of the programming contained in such channel or service;
      • (C) from a physical medium containing one or more prerecorded audiovisual works; or
      • (D) from a copy of a transmission described in subparagraph (A) or from a copy made from a physical medium described in subparagraph (C). In the event that a transmission meets both the conditions set forth in subparagraph (A) and those set forth in subparagraph (B), the transmission shall be treated as a transmission described in subparagraph (A).
    • (3) Inapplicability. – This subsection shall not –
      • (A) require any analog video cassette camcorder to conform to the automatic gain control copy control technology with respect to any video signal received through a camera lens;
      • (B) apply to the manufacture, importation, offer for sale, provision of, or other trafficking in, any professional analog video cassette recorder; or
      • (C) apply to the offer for sale or provision of, or other trafficking in, any previously owned analog video cassette recorder, if such recorder was legally manufactured and sold when new and not subsequently modified in violation of paragraph (1)(B).
    • (4) Definitions. – For purposes of this subsection:
      • (A) An ”analog video cassette recorder” means a device that records, or a device that includes a function that records, on electromagnetic tape in an analog format the electronic impulses produced by the video and audio portions of a television program, motion picture, or other form of audiovisual work.
      • (B) An ”analog video cassette camcorder” means an analog video cassette recorder that contains a recording function that operates through a camera lens and through a video input that may be connected with a television or other video playback device.
      • (C) An analog video cassette recorder ”conforms” to the automatic gain control copy control technology if it –
      •  
        • (i) detects one or more of the elements of such technology and does not record the motion picture or transmission protected by such technology; or
        • (ii) records a signal that, when played back, exhibits a meaningfully distorted or degraded display.
      • (D) The term ”professional analog video cassette recorder” means an analog video cassette recorder that is designed, manufactured, marketed, and intended for use by a person who regularly employs such a device for a lawful business or industrial use, including making, performing, displaying, distributing, or transmitting copies of motion pictures on a commercial scale.
      • (E) The terms ”VHS format”, ”8mm format”, ”Beta format”, ”automatic gain control copy control technology”, ”colorstripe copy control technology”, ”four-line version of the colorstripe copy control technology”, and ”NTSC” have the meanings that are commonly understood in the consumer electronics and motion picture industries as of the date of the enactment of this chapter.
    • (5) Violations. – Any violation of paragraph (1) of this subsection shall be treated as a violation of subsection (b)(1) of this section. Any violation of paragraph (2) of this subsection shall be deemed an ”act of circumvention” for the purposes of section 1203(c)(3)(A) of this chapter.

Kids face summary trials for copyright violations – INSIDE JoongAng Daily

Kids face summary trials for copyright violations – INSIDE JoongAng Daily.

Relax, United States. This is from Korea.

Or, better, don’t relax. The law in the US takes the owner of the internet account to task for infringements made under that main account; the music industry, for example, regularly sues the parents of children in the US who download music for “free” from the internet. Thus, in the US, the parents are answerable for the child’s sins.

The Koreans place the onus of the offense where it belongs: on the kids — the actual infringers. 

I talk regularly to kids in schools about copyright and how their “free” downloads will cost their parents thousands of dollars in attorney fees and judgment payments to the music licensors; the kids look at me like I have five heads. Maybe if the US began to treat copyright infringement like the crime it is — and held the actual infringer responsible — the temptation to make those free downloads would be significantly less.

I love kids, which is why I think we just might have a generation of people coming up who have no clue about how to be accountable, and that makes me sad. But that’s a parenting issue, not the subject of this blog. If, though, answering for infringing IP can help, I’m all for making the infringer answer personally, no matter what the tender age.

World Copyright Treaty: Accession by the Republic of Tajikistan

World Copyright Treaty (WCT) Accession by the Republic of Tajikistan.

The World Copyright Treaty was accessed by the Republic of Tajikistan on January 5, 2009 and will go into effect as to Tajikistan on April 5, 2009; the treaty was originally adopted on December 20, 1996.

So what took the Republic of Tajikistan so long to come on board?

And where IS Tajikistan, anyway?

The answer to the second question helps with the answer to the first, so let’s go in that order. Tajikistan is north of Pakistan and Afghanistan, west of China, east of Uzbekistan and south of Kyrgyzstan. In other words, it’s in the far east, in the middle of the Himalayas and not far north of India. This part of the world is not noted for strong enforcement of IP. China — home to more than a billion people — is coming into synch with the western portion of the world, but IP enforcement there is still a long and difficult process. That Tajikistan, its newly independent neighbor (independent since 1991), has accessed this treaty is an immensely positive step in the quest for worldwide recognition of intellectual property rights, and Tajikistan is to be congratulated.