Extension Sought

GoogleWatch reports that Google has filed for an extension to reply to Viacom's copyright infringement lawsuit. This means that Google's response is due sometime before May 2. GoogleWatch says the extension was needed because Google has yet to retain counsel.

Google Responds

Last week Viacom took its dispute with YouTube to the court of public opinion, having an OpEd by its head counsel published in WaPo. Not to be outdone, Google has responded in kind with a letter to the editor, calling the lawsuit "an attack on the way people communicate on the Web and on the platforms that allow people to make the Internet their own." More:

Viacom is attempting to rewrite established copyright law through a baseless lawsuit. In February, after negotiations broke down, Viacom requested that YouTube take down more than 100,000 videos. We did so immediately, working through a weekend. Viacom later withdrew some of those requests, apparently realizing that those videos were not infringing, after all. Though Viacom seems unable to determine what constitutes infringing content, its lawyers believe that we should have the responsibility and ability to do it for them. Fortunately, the law is clear, and on our side.

Viacom OpEd

Viacom's head lawyer, Michael Fricklas, has an editorial in WaPo saying that YouTube is a leech making money off of other people's intellectual property:

Google and YouTube wouldn't be here if not for investment in software and technologies spurred by patent and copyright laws. It's time they respected them.

Nice to see Viacom's head counsel's thoughts on the issue, though Fricklas is obviously not catering to the Demetri Martin crowd. The piece begins to lose steam at the end, where it talks about fairness and who it's fair to burden with the job of policing for infringing videos. I'll hand it over since Techdirt nailed it pretty well:

Fricklas may damage his own case towards the end where he talks about how unfair it is to put the burden of tracking the content on companies like Viacom, noting how difficult it is: "Putting the burden on the owners of creative works would require every copyright owner, big and small, to patrol the Web continually on an ever-burgeoning number of sites. That's hardly a workable or equitable solution." Yet, somehow it's "workable and equitable" to expect Google to do the same thing? The safe harbor provisions of the DMCA are there for very good reasons: to keep the platform providers from being responsible for what their users do. If Viacom is upset that fans are promoting their shows for them (and we still haven't quite figured out why), then why don't they do what the law says they should, and sue the fans uploading the content?

Then, the real losers will be the Demitris of the world.

Daily Show Takes on Viacom v. YouTube

"Basically, we're talking about whether its illegal to watch me discussing the legality of you watching me on the Daily Show if you're watching it on YouTube. Maybe I'm on YouTube right now. You watching me on YouTube?"

Problems with Filtering Copyrighted Material

A recent story described how a doctor was upset that YouTube restricted access to his videos instructing women how to give themselves breast exams to users 18 years of age and older. It is, after all, surprisingly difficult to find porn on YouTube and this makes clear that YouTube has some sort of filtering system to handle such videos. One of Viacom's complaints is why YouTube can't do for Viacom what it does for porn, namely have it removed. While "I know it when I see it" (Potter Stewart, Jacobellis v. Ohio [1964]), works for porn, it does not work for copyright.

Viacom's lawsuit accuses YouTube of not doing a good enough job identifying and removing videos that are subject to copyright. While YouTube can argue that it is covered by the safeharbors of DMCA 512(c), it loses safeharbor protection if it has either actual knowledge or constructive knowledge that infringing videos have been uploaded to its site and it has done nothing to remove them. The question is whether knowing that a Viacom clip is available on YouTube is actual or constructive knowledge of infringement. One interesting issue in assessing YouTube's knowledge is that, sometimes, companies sometimes upload their own content only to have their lawyers demand that YouTube remove it.

Viacom's position is that YouTube (and everyone else) know that Viacom's copyrighted material is available on YouTube and that YouTube has a duty to remove it. YouTube's position is that the DMCA imposes no duty on it to constantly police its site, such that it is following the letter of the law by waiting for Viacom to file takedown notices.

Now, by the very nature of being a video hosting site, YouTube knows that it does not have the copyright to any video that users upload: every video is potentially infringing. Also, some people would believe that it's simply common sense to assume that a clip of a Viacom show on YouTube is per se copyright infringement. But the central problem here is that whether a video infringes copyright is a rather technical question that can't effectively be answered by a keyword search through YouTube.

Case in point, the Viacom property Adult Swim had its marketing department upload several clips of its shows to YouTube for promotional reasons, hoping the clips would be forwarded around and get more people watching them on TV. Some of their own lawyers came across those clips and sent takedown notices to YouTube.

NBC's marketing department has been doing the same, uploading promos for Heroes that contain no information tying them back to NBC. The move:

was so clandestine that [Vince] Manze says he didn't even tell "Heroes" creator Tim Kring about "Zeroes." Keeping the clip's origins a secret was a means of building up its credibility with potential viewers.

The extent of this 'lawyers going DMCA on their own marketing department' phenomena is unclear, but what is clear is that these instances can't be classified as infringement in the first place. I mean, can Viacom or NBC infringe on their own material? To be fair, I don't think Adult Swim has much contact with their lawyers anyway, but in this context, is that YouTube's fault?

These two examples help illustrate a point about the ease or difficulty in deciding whether a video is infringing. Whatever filtering system Viacom thinks YouTube should use, it would not be able to distinguish a video that was uploaded by some college student from the same video being uploaded by that company's marketing department. The college kid has infringed, the marketing department has not, but how is YouTube or any other site supposed to know that?

The simple solution would require marketing departments to set up and register accounts with YouTube, such that copyrighted videos could be filtered based on the accounts that uploaded them. Whether this would be effective from a marketing standpoint is debatable. That marketing departments seem to recognize that videos need street-cred to be successful indicates that it would not.

But these examples are fairly straightforward in that simply knowing who uploaded the video solves the problem of assessing whether a video is infringing or not. If you've followed the EFF's recent challenges to Viacom's DMCA practices, however, you would know that the issue of knowledge is a bit trickier.

First, Viacom's avalanche of takedown notices (over 100,000) sent to YouTube weeks before it filed its lawsuit swept up around 60 user videos that Viacom did not have the rights to and had no basis for demanding that they be taken down. The EFF is said to be preparing a suit against Viacom for not following the DMCA, which clearly states that a sender of a takedown notice must include:

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The EFF has pursued these types of cases before against Diebold and the SpankMaker.

Second, the EFF today filed a federal lawsuit against Viacom demanding a video that was subject of a takedown notice be declared non-infringing because it is a parody. The video itself is best described by BoingBoing:

a hilarious spinoff of Stephen Colbert's 'Green Screen challenge' which had him fighting an army of Nancy Pelosi clones, created entirely within Second Life. It included a 15 second section of avatars *watching* the 'Colbert Report' from within Second Life, but the rest of the 90 second, CC-licensed video is all original content and clearly parody, both of the show and the American political scene.

The video itself is still available here. Here you have a video that not only is most likely fair use, but which also was solicited in part by Viacom as part of Colbert's Green Screen Challenge. Whether this video is fair use or copyright infringement I won't say, but would would YouTube know? Should YouTube be responsible for making that legal determination (which is what the decision is)? Would a filter know the difference?

Both of these cases illustrate how seemingly legitimate videos were taken off-line. The principles of free speech and fair use certainly seem applicable here and people should have the opportunity to challenge their classification as an infringer. After all, isn't this issue of process the central sticking point in the enemy combatant debate?

Whether or not YouTube has sufficient knowledge, whether actual or constructive, of infringing videos on its servers is a difficult question. However, just because a filter, human or automated, can identify porn and remove it does not mean that such a system would be effective in preventing copyright infringement. In the end, Viacom's lawsuit claims that the DMCA has shifted too much of the copyright enforcement burden onto copyright owners by means of the notice and takedown procedure. They want filters or for YouTube to actively police it's site. In effect, this would reduce the burden of filing takedown notices on Viacom while placing the burden of making a legal determination of each uploaded video on YouTube. Given the often complicated nature of deciding whether a given video is infringing, the questions ought to be who is in the better position to know and who should be responsible for making these legal decisions. If a user can't share a video that they have the legal right to create and distribute, is the proper target of their legal ire Viacom, which owns the rights and is the only entity that has a right to object, or YouTube, which is simply acting as an Internet host?

In short, the argument that YouTube already filters porn is nothing more than a red herring and the burden of identifying infringing videos should be placed on Viacom, even if only because they should be held to answer if a video is a legitimate use copyrighted material.

KinderStart Suit Officially Frivolous

The KinderStart case against Google over search rankings has been dismissed as frivolous and the KinderStart attorney will face sanctions requiring him to pay some of Google's legal fees. The amount has yet to be determined. The case was originally dismissed last year, but the company was given a chance to try again. This goes towards setting the standard that you can't sue a search engine because you have a bad search ranking.

Eric Goldman has copies of the decisions dismissing the case and granting sanctions.

Previous discussion on KinderStart:

• Another Google Lawsuit Over PageRank
• KinderStart Case May Proceed
• More on KinderStart
• A Does of Healthy Competition or Malpractice?
• KinderStart Case Dismissed
• Google Gets Sued a Lot

Go Badgers

It's a good day to be an alum as UW-Madison sticks it to the RIAA.

Hypocrisy and iFilm

Since the Viacom lawsuit against YouTube is primarily an attack on the DMCA, whether its notice and takedown procedure is too burdensome on copyright owners, it's interesting to note that the DMCA protects Viacom's online video sites as much as it protects YouTube.

Only days after Viacom sued YouTube, many people have said "Hey, wait a minute. What about iFilm?" iFilm after all is a video hosting site much like YouTube and one of the destinations to which Viacom is trying to funnel people so they can watch the $1 billion worth of Daily Show and Colbert Report clips they were previously watching on YouTube. The funny thing is that for all of Viacom's bemoaning that YouTube is not following the law, the fact is that Viacom would be equally culpable for infringing videos on its site.

Ars reports today that there are infringing videos on iFilm, specifically video from the Knicks-Nuggets brawl earlier this season. If these videos are up without the permission of the rights holder, than it certainly appears the Viacom is asking a court to hold YouTube to a standard that it doesn't adhere to even on its own site. Quite damning indeed.

However, some red flags arise with the Ars story. I spent much of yesterday searching through iFilm for infringing videos and came across a few curious observations. First, videos on the site indicate the user that submitted the video, but the videos that Ars points to don't have a user name attached. This leads me to believe that a clip uploaded by iFilm itself doesn't include the user identification, as can be seen by this clip from the Office (which I presume Viacom has the right to put up). If that's not the case, then I wonder why the NBA clips don't have a user id. The DMCA requires a site to bar users deemed to be repeat infringers, a duty that gets complicated if you can't track down what your users upload.

In some of the clips I can across that I found suspect (and also some of the more interesting clips), they seemed to be uploaded by iFilm insiders. This montage of 80's cartoons is a classic example of benign infringement, technically copyright infringement without any real harm because it doesn't really hurt the copyright owner, was uploaded by the user dhammond. After some snooping, I'm confident that this dhammond is this Doug Hammond, who appears to work for iFilm and has appeared on TV promoting iFilm and its zany video clips. What about all his videos? Did he get permission from Maury Povich before putting clips of his appearance on iFilm? What about the cartoon montage and his other clips? Plus, what does it say about a video sharing site (one that is supposed to "compete" with YouTube) when employees masquerade on the site as regular users?

If it turns out that iFilm employees are posting infringing material, iFilm would certainly be liable for the infringement and would be a bad act, possibly even opening iFilm up to liability for inducing others to infringe copyright.

I don't work at iFilm nor do I work at any video sharing site, but as a law student devoted to IP and the Internet, I have difficulty in assessing what videos are allowed to be on iFilm and what are not. Viacom is a huge company with lots of properties so it's difficult to say what they own the rights to. It's also difficult to know with whom they have deals with. There are lots of Law and Order clips on iFilm, but what's the status on those? This should only highlight the difficulty that a site has in identifying infringing material and is why the DMCA is right when it says that a website should not be held liable if it's not 100% effective in blocking these clips and puts the onus on reporting infringement on the rights holders themselves. Who is in a better position to judge whether a video on iFilm infringes, me or Viacom?

This is not to say that infringing videos do not exist on YouTube. In a display of civil disobedience, Gawker media uploaded clips from Oprah to iFilm. Now, Oprah is made by CBS so whether or not CBS clips are allowed to be on iFilm is probably a non-issue given that it used to be owned run by Viacom. But the point is that a random user recorded live TV and uploaded the clip. That's the rub and what Viacom criticizes YouTube for not policing better. Clearly, Viacom has not structured iFilm in such a way that is "better" than YouTube: both sites allow users to post whatever they want. Or so it appears.

In the Ars article that is mentioned above, it said that Viacom had responded to the hypocrisy charge and comparisons between iFilm and YouTube:

Contributions to iFilm are all screened by iFilm employees prior to posting, to ensure that copyrighted, pornographic or other restricted content is not posted to the site.

Really? That is bad news for Viacom for a couple of reasons.

First, if it's true, then any infringing material that does make it through the human filters has the potential to void iFilm's safeharbor status under DMCA 512(c). A site can only invoke the 512(c) safeharbor if it doesn't know that infringing material has been uploaded by a user. The relevant provisions here are 512(c)(1)(A)(i) and 512(c)(1)(A)(ii), which say that the safeharbor only applies when the defendant:

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent;

While screening an infringing video may not give iFilm actual knowledge that video is infringing (who owns it? who's uploading it? etc.), it seems that iFilm would have constructive knowledge that the video infringes copyright. Using the Oprah clip as an example, ignoring the fact that Viacom might end up having to sue itself, an iFilm screener should know that Oprah is the kind of clip that someone would own and that shouldn't be uploaded without a proper licensing deal. If iFilm uploads it anyway, it is now "aware of facts or circumstances from which infringing activity is apparent." After all, they saw the clip, had a moment to consider its legality, and uploaded it for public consumption. Bye-bye safeharbor.

Because of this knowledge problem, it can rightly be said that the DMCA doesn't require, and even encourages sites not to police what their users upload since if they do, once they find something that looks like it may infringe copyright they must remove it to maintain their safeharbor. No where in the DMCA is there an affirmative duty to police against infringement. Viacom is annoyed by this alleged failure in the DMCA and would prefer that YouTube follow the same kind of screening measures as iFilm does, which would be one way to resolve their lawsuit. That's nice, but that's not what the law says, and even worse it's amazing to think that in making its point about how a respectable video sharing site should operate, Viacom would actually jeopardize its safeharbor standing by having a human filter. So much for taking the moral high road.

Second, if iFilm does use a human filter and copyrighted videos make it through, the further implications of that could be a big problem. In its complaint, Viacom alleges that YouTube induces users to infringe copyright. I have discussed the inducement claim to some extent already, and how inducement is really a bad intent test, but here we can see how a court could find that iFilm "induces" infringement. If iFilm is letting copyrighted material through its human filter, it could be argued that any errors are not really errors at all and that iFilm has allowed certain clips to evade its filters in order to draw more users. This may be a stretch, but really no more of a stretch than the inducement claim against YouTube.

As has been said, the DMCA protects all sites equally so long as they behave according to the statute and protects YouTube as much as it protects iFilm and Viacom. What Viacom does with iFilm should be relevant to a court because it goes to show the larger picture of how difficult it can be to identify infringing videos, the extent that an independent website is equipped to make such copyright determinations, and the also the intellectual honesty that Viacom is bringing in its complaint against YouTube. Viacom may well think that this hypocrisy is required given the current state of the law, how its unfair to rights holders and that iFilm's policy should be what the law condones (and not YouTube's), but that's for Congress to decide. It's not the court's job to overrule Congress because Viacom is no longer satisfied with following the law because it's too much work.

As an aside, and not that I want to induce others to infringe copyright, it would really be something if there was a concerted and decentralized effort to flood iFilm with various infringing videos and see how Viacom reacts. Even better, if only YouTube or Google had material they owned the rights to that could be uploaded to iFilm. That would give GooTube a chance to countersue, making things really interesting. But to be sure, in no way do I encourage others to break the law, nor am I inducing others to do so, even if such would be a political statement.

NYT OpEd on Viacom v YouTube

Lawrence Lessig writes an OpEd in today's NYT discussing the role of the courts in Viacom v. YouTube. Lessig describes how the Supreme Court has traditionally deferred to Congress in terms of the limits on copyright, a practice that changed with the Grokster decision where SCOTUS crafted its inducement test that had never existed before:

But 20 months ago, the Supreme Court reversed this wise policy of deference. Drawing upon common law-like power, the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement. It announced this new form of liability even though at precisely the same time Congress was holding hearings about whether to amend the Copyright Act to create the same liability.

The Grokster case thus sent a clear message to lawyers everywhere: You get two bites at the copyright policy-making apple, one in Congress and one in the courts. But in Congress, you need hundreds of votes. In the courts, you need just five.

With the lawsuit, Viacom is challenging the DMCA and thus must ask a court to second guess Congress' wisdom if it hopes to prevail (that is, if one believes that the safeharbor of 512(c) applies to YouTube). Complaints by Viacom that sending takedown notices for every infringing video is too onerous is a complaint against Congress, as YouTube has not created this hassle for Viacom, but the DMCA has. Thus what we have here is a party going to court to a policy set by Congress altered by a court. Another way of saying this is that Viacom is seeking some judicial activism:

Whether or not [the DMCA] made sense in 1998, Viacom believes it no longer makes sense today. Long ago, Justice Hugo Black argued that it was not up to the Supreme Court to keep the Constitution “in tune with the times.” And it is here that the cupidity of the court begins to matter. For by setting the precedent that the court is as entitled to keep the Copyright Act “in tune with the times” as Congress, it has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom’s liking. But Viacom recognizes there’s no political support for the change it wants. It thus turns to a policy maker that doesn’t need political support — the Supreme Court.

The conservatives on the Supreme Court have long warned about just this dynamic. And while I remain a skeptic about deferring to Congress on constitutional matters, this case is a powerful lesson about the costs of judicial policy making in an area as complex as copyright. The Internet will now face years of uncertainty before this fundamental question about the meaning of a decade-old legislative deal gets resolved.

Inside Viacom: Mika Salmi

CNet takes an interesting look inside Viacom with a profile of Mika Salmi, founder of Atom Entertainment and current president of Global Digital Media for Viacom's MTV networks (which includes MTV, Nickelodeon, and Comedy Central). Many pro-YouTubers accuse Viacom of "not getting the Internet," but it's not that they don't have smart people there, they're just stuck with an old-school corporate structure. Some highlights of the profile that suggest Viacom is not as clueless as some think:

Salmi believes big "portal sites" such as YouTube and MySpace.com will give way to niche sites that appeal to audiences with special interests. This, said Salmi, is a game MTV Networks knows how to play. The company has been pinpointing niches in music and entertainment for decades, and MTV Networks has more than 150 Web sites and 136 TV channels around the world, he said.

"When I started here, I said we should go deeper and make all these TV shows and all these brands into their own communities and worlds," Salmi said. "If the audience likes (The Colbert Report), they want to get to Colbert as quickly as possible. They don't want to necessarily go through Comedy Central...The thought is that we should go from having dozens of brands to hundreds of brands."

This is probably true, but I wonder how people are supposed to get from one niche to the next. There still needs to a be a central place where people can find what they're looking for, and the burden of having to know which niche site to find will turn plenty of people off. It's also true that the Viacom video site has only been recently updated, so it's still a work in progress.

Salmi, 41, worked at the record label EMI Group before founding Atom in 1995. Atom consisted of game sites Shockwave and AddictingGames.com, and video sites Addictingclips.com and AtomFilms, a site specializing in short films.

"He really helped develop a new category, which was short clips online," said Todd Chanko, an analyst with Jupiter Research. Salmi stuck it out with video when almost everybody else threw in the towel because of poor picture quality and slow download speeds, said Josh Felser, the CEO of the video-sharing site Grouper.

"Mika is very well respected in online video because he kept his vision intact," said Felser, who sold Grouper to Sony last year. "He survived all the trouble during the dot-com collapse and ended up selling his company for a bucket load of money."

Ah, a music guy.

Asked for a hint on how the YouTube conflict might end, Salmi wouldn't say. He noted, however, that he's friendly with YouTube founders Steve Chen and Chad Hurley and still hopes for a resolution.

"There was never any strategy at Viacom that said, 'We don't want people to watch our videos (at YouTube),'" Salmi said. "We want to be a distributor. We have distribution deals with iTunes and Comcast and recently we did a deal with (online video company) Joost. We didn't want to do it all ourselves. But if someone is actually making money on our content we tell them that, 'If you want to distribute our content we should have a deal with you.' If it's a professional relationship, then there should be a business deal.

"We just couldn't come to an agreement with YouTube," he added. "But we certainly want to be there."

The skeptic in me notes the timing of this article and that one man does not an Internet savvy company make. In one of the article's examples of Salmi's forward-thinking techiness, it notes that he helped push Viacom to allow users to embed videos. If taking the embed feature from YouTube and trying to replicate the site as a whole, just on Viacom's own servers, is forward-thinking then we are in trouble. Needing to have one of these distribution deals essential gives Viacom veto power over any competitor in the sphere of online video distribution. Given that "YouTube" isn't distributing these videos as much as individual users are, it begs the question of who really needs to be signing deals with Viacom, and whether Viacom is seeking to veto the way YouTube is setup and all other sites that might function the same way.

Content is King

Actually, no it's not. It's about the distribution, stupid.

Viacom, YouTube, and Inducement

Count IV in the Viacom v. YouTube complaint is for "inducement of copyright infringement." What is inducement and does YouTube induce people to infringe copyright?

Inducement is the idea that a defendant should be liable for its bad intent in encouraging others to infringe copyright. In 2005, the Supreme Court laid out the legal rule for inducement to infringe copyright in MGM v. Grokster, 545 US 913 [2005]:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. Grokster, 937.

When Grokster came to the Supreme Court, it had already won before the District Court and the 9th Circuit. Both lower courts applied the rule from Sony v. Universal (the famous Betamax case) that:

the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes

It's amazing to think that, had the Sony decision gone the other way (it was a 5-4 decision), there might never have been a VCR. Fortunately, SCOTUS in Sony realized that, while some people would use the Betamax to illegally copy TV shows, plenty of copyright owners condoned such taping and some recordings would fall under fair use. Because Sony couldn't know how people would use the Betamax, it would not be held contributorily liability for copyright infringement by Betamax users so long as the Betamax was capable of substantial non-infringing uses.

Grokster was a provider of p2p file-sharing software and was sued for contributory and vicarious infringement. The District Court and the 9th Circuit both likened p2p software to the Betamax and, finding that p2p file-sharing was capable of substantial non-infringing uses and that Grokster didn't know beforehand how its p2p software would be used, granted summary judgment in favor of Grokster, finding it not liable under the rule from Sony. SCOTUS disagreed with this result and reversed, finding that the lower courts had misapplied Sony:

Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement. The Ninth Circuit has read Sony's limitation to mean that whenever a product is capable of substantial lawful use, the producer can never be held contributorily liable for third parties' infringing use of it. Grokster, 934

In short, SCOTUS said in Grokster that Sony means an "intent to infringe" would not be imputed to a manufacturer who creates a product that can be used to infringe, but which also has legal uses. This is a far cry from saying that intent is irrelevant so long as the product is capable of substantial lawful use, which is what the 9th Circuit held in finding for Grokster. The 9th Circuit wanted to give manufacturers immunity, while SCOTUS wanted to preserve the ability to punish bad actors.

But wait, I thought copyright infringement was a strict liability crime (you either copied or you didn't), so why all the intent discussion? In Grokster, there was ample evidence that Grokster was a classic bad actor, so bad as to warrant punishing it for its bad intent. SCOTUS found that:

Grokster and StreamCast are not, however, merely passive recipients of information about infringing use. The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement. Grokster, 924.

Among its bad acts was that it actively sought ex-Napster users, claimed that it was the next Napster, directed searches for "Napster" to Grokster's site, and even it's name is reminiscent of Napster. Further, SCOTUS found its business model highly suspect as it received no revenue from users and didn't charge for its software; all revenue came from advertising, which was tied to the number of using the service, which was largely influenced by the ability to download copyrighted material. Plus, when contacted about infringing works being available on the network, Grokster did nothing. Based on this evidence, it was clear to SCOTUS that Grokster existed almost entirely as a tool to infringe copyright based on its acts, intentions, and business model. The lesson: if there's an outside chance your company may be in the infringement business, you better not be a bad actor because a court will massage the law to make it punish you.

It appears that the reason the court focused so much on the intent, and introduced us to the inducement rule, is that contributory infringement might not have been enough for Grokster. Besides direct infringement and vicarious infringement, the third way to be found liable for copyright infringement is through a contributory infringement claim, which requires that the defendant, (1) with knowledge of the infringing activity of another, (2) induces, causes or materially contributes to that infringing conduct. The inability of this test to deal with Sony led to its unique rule, and its inability to deal with Grokster led to the inducement rule, If one is making a product that can be used in both ways that infringe and ways that don't, there is no way to know in advance how a given user will use it. So rather than rely on contributory infringement in finding against Grokster (partly because of that pesky knowledge problem), SCOTUS instead focused on the intent and the common law:

nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law... Thus, where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability. Grokster, 935

In order to effectively punish Grokster for its bad acts, SCOTUS found a way to focus on all the evidence of Grokster's bad intent to hold it liable for the infringement caused by its users. It's worth noting that the Grokster case focused only on the most current version of its software, and not its previous versions that arguably made Grokster look much worse, the evidence of which would not be applicable under the three standard copyright infringement claims. Thus, SCOTUS borrowed the inducement test codified in patent law (the Sony staple-article rule was also adapted from patent law), and found that:

evidence of "active steps . . . taken to encourage direct infringement," Oak Industries, Inc. v. Zenith Electronics Corp., 697 F. Supp. 988, 992 (ND Ill. 1988), such as advertising an infringing use or instructing how to engage in an infringing use, show an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use. Grokster, 936.

Focusing on intent allowed the full scope of Grokster's bad acts to be analyzed by the Court. This break from standard avenues for holding parties liable for the infringement of others can also be seen from the majority opinion's conclusion:

MGM's evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors' words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was. Grokster, 941.

Regarding inducement as in the Grokster decision, the question is then whether YouTube is more like Grokster or more like Sony. For YouTube to fall under the Grokster rule, Viacom would have to show that it marketed itself to users as a means to infringe copyright, that it's business model was based on advertising tied to a large number of users engaging in copyright infringement, and that it was unresponsive to notices of infringing material. If YouTube is more like Sony, than the staple-article doctrine would apply and it would not be liable for infringement so long as its service is capable of substantial non-infringing use. Of course, a court could rely on other factors that indicate bad intent if it were inclined to find against YouTube.

As to YouTube's marketing, I am unfamiliar with any overt attempts to attract users by advertising the ability to infringe copyright. However, YouTube did gain notoriety when the SNL clip of Lazy Sunday was uploaded and the press coverage that surrounded it undoubtedly introduced plenty of people to the site. But does press coverage of an infringing video and the resulting takedown notification count as an advertisement selling YouTube as a place to infringe? That seems like a stretch to me at least. Certainly, advertising the site as a free place to upload videos, any videos even, doesn't seem as bad as what Grokster did. Rather, it seems more akin to Sony's actions in marketing the Betamax. If marketing a site like YouTube counts as inducing others to use the site to infringe, then any other sharing site (ie. Flickr), and possibly any other site that allows users to submit content, would also be inducing copyright infringement.

It's interesting to note how SCOTUS found Grokster's business plan to be evidence of an intent to induce others to infringe because it didn't charge users for its service and relied on advertising revenues. If that reasoning holds, then nearly every Web 2.0 company out there is inducing others to infringe copyright. The YouTube business model certainly fits the Grokster mold, so that would be bad news for YouTube. On the other hand, YouTube has struck licensing deals with several content providers, most recently with the BBC, which helps distinguish it from Grokster. That YouTube was bought for $1.6 billion, yet only made $15 million last year, well, who knows how a court will make sense of that.

Further, YouTube does respond when it is informed that infringing videos are on its site. The DMCA safeharbors under section 512(c) require it and, so far as one can tell, YouTube has followed the processes outlined in 512(c) to the letter. Complaints to the contrary focus on filtering software, or the lack thereof to companies that don't have deals with YouTube, but the extent that filtering software is an issue under the DMCA has yet to be resolved. It would be tragic if a bad intent could be found by complying with a statute lobbied for by big media companies and passed by Congress.

Nothing in the Viacom complaint seems to allege anything that is sufficient for YouTube to fall outside of Sony and under the Grokster rule. The reasoning in the complaint under Count IV is that (1) YouTube users are uploading Viacom videos, (2) YouTube knows that Viacom owns videos, (3) YouTube knows that these videos are owned by Viacom, (4) and thus that YouTube intends for its users to upload Viacom's videos. In short, because everyone knows these videos are up on YouTube (even YouTube itself knows this), users are induced to watch these videos and to upload more. It's debatable as to whether this actually induces copyright infringement, in the abstract at least, but I think SCOTUS made clear that such roundabout ways of finding intent to induce would be inadequate, for the:

mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise. Grokster, 937.

That being said, it would seem that offering users free video hosting service with the hope of paying for the bandwidth through advertising would constitute innovation having a lawful purpose, especially given that plenty of YouTube is filled with random home movies, videos that copyright owners allow to be posted, and videos subject to licensing agreements. In Grokster, a lot was made about the fact that 90% of the material available on Grokster was infringing, but it's worth noting that Sony was only able to show that 10% of uses would be non-infringing. More than 90% of YouTube is legit, and coupled with no bad intent like Grokster, one would imagine it being ok.

Instead of clarifying how courts should view intent and inducement in copyright infringement, the Grokster decision muddied the waters a bit by not providing a clear rule that allows parties to effectively gauge the legality of their actions in designing new products. The Grokster principle exists, but it's application to YouTube is difficult to judge. Based on the complaint and what we know about YouTube, it doesn't appear that YouTube is as bad an actor as Grokster was, but that doesn't mean that creative judges will find the same. All that can be said for certain is that Viacom needs to show plenty more evidence for YouTube to fall under the Grokster ruling, but then again, Viacom may have plead just enough as is so as to have the claim survive YouTube's inevitable motion for summary judgment.

Ew

Came across something that disturbed me and would like to share. Did a quick Google search for "Grokster" since that decision is the place to go to find out about inducement, and saw that grokster.com is still the number one result. Went to check it out and found that the homepage says:

The United States Supreme Court unanimously confirmed
that using this service to trade copyrighted material is illegal.
Copying copyrighted motion picture and music files
using unauthorized peer-to-peer services is illegal and is
prosecuted by copyright owners.

There are legal services for downloading music and movies.
This service is not one of them.

YOUR IP ADDRESS IS xx.xxx.xx.xxx AND HAS BEEN LOGGED.
Don't think you can't get caught. You are not anonymous.

I removed my IP address here, but that last bit has me disturbed. Not that I encourage infringement, and everyone should realize that there's no anonymity online, but still, it's a little too Big Brother for my taste. Ew.

Is Viacom v YouTube That Big a Deal?

Interesting observation by Eric Goldman on CNet yesterday. While the Viacom lawsuit spells trouble for YouTube, it's worth keeping in mind that Google and YouTube are still separate entities and that the issue of video sharing is ancillary to Google's primary business. As Goldman put it on CNet:

"Google has plenty of legal albatrosses," said Eric Goldman, assistant professor at Santa Clara University School of Law and director of the High Tech Law Institute. "This doesn't even register compared to the other problems they face," such as the litigation over trademarks used in paid search in the U.S. and other countries, and over copyright related to images and Google News in the U.S. and Europe, as well as copyright lawsuits over its book-scanning and digitization efforts.

"Some of those implicate Google's core business much more squarely than this lawsuit does," Goldman said. "I can't even track all the patent cases they are involved in, but each one has the potential to be a much more serious risk to their business than this one does."

This leads to two points. First, even though $1 billion may be a shocking number, a loss for Google wouldn't really change all that much. As is, the YouTube purchase price of $1.6 billion set aside around $200 million for copyright lawsuits, some of which is presumably still available to pay damages here. Plus Google has billions in cash available. If YouTube gets shut down (with it's paltry income of $15 million last year), it's not like that will cause any real harm to Google. Also, it does not appear that Google Video is the subject of this suit, further decreasing the effect of an adverse outcome.

Second, that Google has already gone to court to litigate issues far more important to its business than this and has won, suggests that Google is not averse to litigation. Their legal team is no joke and the services they offer are built in a way very attuned to the state of the law (eg. how Book Search mirrors the requirements for fair use), making a Google victory all the more likely. It would seem that Google is very comfortable handling cases of this nature.

That YouTube is not central to Google's current business (though perhaps important in the future), makes it unclear as to whether it's worth it for Google to go all the way with the case. It certainly has the talent and funds to go for it, and to risk the loss, and would provide it with a way to stick it to the old media. But while YouTube, as in video sharing, may not be central to Google's business, the DMCA's safeharbor provisions are central to Google's business, section 512(c) in particular. Viacom is certainly testing the limits and validity of the DMCA with this lawsuit and Google has a huge interest in making sure that the safeharbors are found to be valid, that they apply to Google and its subsidiaries, and that they apply to these kinds of online behaviors. Settling this case could weaken Google's ability to rely on the DMCA, but losing the case would be even worse. If they think they can win on the DMCA issue, I would expect Google to take the case all the way. If not, a settlement is on the way.

The Day After

And clips of Viacom shows are still on YouTube.

Reminds me of Brodie from Mall Rats: "That kid is back on the escalator again!"




This clip seems awfully relevant for some reason.

Viacom Roundup

With Viacom's lawsuit against YouTube filed yesterday, plenty of people chimed in to discuss the case.

With the announcement of the lawsuit, GoogleWatch wonders why more people aren't "running around like Mark Cuban with his head cut off." On a more serious note, GoogleWatch offers 18 reasons why YouTube is guilty as charged, largely summarizing Viacom's complaint. Among the reasons:

1. YouTube's value is largely based on infringing works.
3. Although individual users are the ones to upload videos, YouTube copies the videos to its servers, indexes the metadata, and creates thumbnails. YouTube then publicly displays and performs the infringing works.
6. YouTube doesn't have a license for these works.
9. YouTube derives advertising revenue directly attributable to the infringing works.
10. YouTube has the right and ability to control the videos on its site, and even imposes terms of use on uploaders. YouTube also proactively removes pornography.

Cynthia at IP & Democracy calls Viacom's complaint "fluffy" as it does not mention the DMCA once. Rather than cite the DMCA and argue that it is outdated,

Viacom’s complaint does nothing of the sort. It’s a bundle of fuzzy allegations that, ironically, barely cites any laws, much less laws that YouTube might be violating. It’s replete with citations from press articles about YouTube and how enriched the site’s founders have become and how a giant company, Google, hopes to continue ripping off copyright holders. It’s a puffy and fluffy lawsuit.

She also points out the irony of Atom Entertainment, a video sharing site owned by Viacom, which relies on DMCA to remove infringing videos. If YouTube is guilty of copyright infringement, then so is Viacom.

Liz at NewTeeVee points out that the $1 billion in damages Viacom is seeking is actually quite low. According to Congress, the statutory level of damages for each case of infringement is $150,000,

Take a trip to the calculators, noting that Viacom today pegged the number of infringing clips at 160,000. At up to $150,000 a pop, that’s potential total damages of $24 billion. Seriously. $24 billion.

That's a lot of money, especially as she points out that YouTube on made $15 million last year.

BuzzMachine notes that the lawsuit is really taking issue with Viacom's fans, as well as the law. Further, Viacom is simply "boneheaded":

At last week’s Online Publishers Association, Betsy Morgan of CBSNews.com, said that when an infringing clip goes up on YouTube, they take it down and then replace it with a noninfringing, official copy, which has the added benefit of enabling the conversation to cluster around one rather than many copies of the same event. That’s smart. I guess when Viacom and CBS split up, CBS got the IQ.

Techdirt calls this the nuclear option, and thinks the lawsuit shows how out of touch Viacom is with the world:

The suit illustrates Viacom's misunderstanding of the web and YouTube: its claim for $1 billion essentially says that's the amount of money it thinks it's missed out on because of YouTube (just to put it in perspective, Viacom's 2006 revenues were $11.5 billion). That's pretty ridiculous, and should Viacom's own video site ever become popular enough to deliver similar viewer stats, the revenues it generates will underline that.

Google Blogoscoped defends Google, pointing out that not all of Viacom's alleged 160,000 may in fact be infringing and may be covered by fair use. This seems all the more relevant given the mountain of takedown letters that Viacom sent YouTube last month that included numerous video clips containing no Viacom content whatsoever.

Oh right, Google has it's own news service too. Funny enough, Google News offered up this Information Week article, which both does a good job placing this lawsuit in the broader context of recent copyright complaints against Google and is perhaps the mainstream coverage that is friendliest to Google's position. Coincidence that this article heads this story on Google News?

One would like to think that this lawsuit is a ploy by Viacom to get Google to come to a fair licensing deal (fair to Viacom in its opinion, at least). Unfortunately, I do not think this to be the case. Filing a lawsuit as a means to start negotiations will undoubtedly annoy the court. Then there's the fact that Google's lawyers have a good shot at winning this case. One would have to assume that the suit wouldn't have been filed unless Viacom believes it can win and is prepared to go all the way.

The complaint uses the language of "inducement" to infringe copyright, an act that played an important part in shutting down the Grokster file-sharing service. It's worth knowing here that Jenner and Block, the firm that represented MGM against Grokster, is representing Viacom. Clearly these lawyers know what they are doing, so the failure to cite the DMCA in the complaint is likely no failure at all. To me, it looks like the complaint merely alleges copyright infringement. Any talk of the DMCA and its application tends to serve as a defense for YouTube, which Viacom doesn't have to bother with at this point. Of course, the DMCA will be central to the case, but it seems that Viacom's legal position is something akin to "hey court, this is copyright infringement, so do something about it, and if you try that DMCA nonsense it simply won't solve the problem."

Viacom v YouTube Complaint

Found the Viacom v YouTube complaint, courtesy of the NYT. I will be going through and parsing it and will hopefully have more on it later on today.

And So It Begins

Viacom has finally decided to go after YouTube, filing a lawsuit today that claims "massive copyright infringement" and seeks $1 billion in damages for an alleged 160,000 unauthorized clips that have been viewed 1.5 billion times. Viacom has also filed for an injunction, meaning that it is seeking to shut down YouTube until it complies with copyright law, though the scope of the injunction is unclear and Viacom might be seeking a more limited injunction. Or maybe not.

According to CNet, Viacom has made a statement saying YouTube has built

a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself and its corporate parent Google

And further complains that

In fact, YouTube's strategy has been to avoid taking proactive steps to curtail the infringement on its site, thus generating significant traffic and revenues for itself while shifting the entire burden--and high cost--of monitoring YouTube onto the victims of its infringement.

As to whether YouTube has improperly shifted the burden of copyright enforcement onto victims, well, that's what the DMCA does, so it's hard to fault YouTube for following a law that was largely influenced by Big Content lobbyists.

In conversations with people, I've found most people believe that what happened to Napster could never happen to YouTube because they were somehow fundamentally different. With the filing of this suit, however, it should be clear that YouTube is facing a similar challenge and that whatever interests YouTube serves may very well take a back seat to Viacom's interest in enforcing its copyrights.

This case will be closely followed here.

Digitizing History

The NYT's has a look at efforts to digitize the Library of Congress and other collections, whose "material that is not digitized risks being neglected as it would not have been in the past, virtually lost to the great majority of potential users." As has become the frequent case, the NYT also has a great graphic on this.

For one thing, costs are prohibitive. Scanning alone on smaller items ranges from $6 to $9 for a 35-millimeter slide, to $7 to $11 a page for presidential papers, to $12 to $25 for poster-size pieces. (The cost of scanning an object can be a relatively minor part of the entire expense of digitizing and making an item accessible online.)

...

But the reality remains that a new generation of researchers prefers to seek information online, a trend made all too clear to Mr. Hastings of the National Archives last year, after Google, in an experiment of sorts, digitized 101 of the National Archives' films — including World War II newsreels and NASA footage — and put them up on its site, at video.google.com/nara.html.

"Before that happened, we had 200 requests total for the whole year in our research room," Mr. Hastings said. "The first month the films were available on Google, there were about 200,000 hits on them — a thousandfold increase."

...

WHILE copyright is not a concern for those digitizing documents that are hundreds of years old, copyright restrictions play a significant role when it comes to modern material. Even if the Steinbeck Center in Salinas were to find the money to digitize, say, the manuscript of "The Pearl," its copyright would limit its distribution.

"At this point, online materials are best for authors no longer under copyright," said Susan Shillinglaw, a professor of English at San Jose State University and scholar in residence at the Steinbeck Center.

When Leonard Bernstein's family donated the composer's papers to the Library of Congress in 1993, it was with the goal of digitizing portions of the collection and making them broadly accessible. Although more than a thousand items from the collection have been digitized and placed on the library's Web site, there is still an enormous quantity of material that, because of sheer volume and copyright concerns, is still accessible only to researchers who travel to the library.

For instance, the collection includes a seven-page letter that Jacqueline Kennedy wrote by hand to Bernstein at 4 a.m. on June 8, 1968, the day after the funeral for Robert F. Kennedy, thanking him for conducting Mahler's Requiem during the ceremony. The letter is an extraordinary window into her grief: "Your music was everything in my heart, of peace and pain and such drowning beauty," she wrote. But the library would need permission from the estate of Mrs. Onassis to digitize it.

When it comes to sound recordings, copyright law can introduce additional complications. Recordings made before 1972 are protected under state rather than federal laws, and under a provision of the 1976 Copyright Act, may be entitled to protection under state law until 2067. Also, an additional copyright restriction often applies to the underlying musical composition.

A study published in 2005 by the Library of Congress and the Council on Library and Information Resources found that some 84 percent of historical sound recordings spanning jazz, blues, gospel, country and classical music in the United States, and made from 1890 to 1964, have become virtually inaccessible.

"Copyright is a very blunt instrument," said Tim Brooks, the author of "Lost Sounds: Blacks and the Birth of the Recording Industry, 1890 to 1919" (University of Illinois, 2004). "Once you have copyright, you have total control; there's very little room in the copyright law even for preservation, much less reissuing material."

Generally, rights owners like Sony BMG have reissued on CD only a small portion of the recordings they control.

For example, John Philip Sousa's own band made scores of recordings for Victor Records in the early 20th century. BMG bought Victor in 1986, and few if any of those recordings have since been reissued on CD. "There is probably an odd track out somewhere," Mr. Brooks said, "but they've certainly never done any kind of retrospective of him that I'm aware of." And of the hundreds of recordings made in the same period by Noble Sissle, an African-American tenor who recorded for several labels now owned by Sony BMG, few if any have made it onto CD.

THE result, Mr. Brooks said, is a series of gaps in the popular understanding of the nation's musical heritage. "It's as if before Bessie Smith, there was nothing," he said. "It has the effect of narrowing our own understanding of our own history."

Another factor that determines what is digitized is how straightforward it is to copy the material.

In some cases, said Theresa Salazar, curator of Western Americana at the Bancroft Library at the University of California, Berkeley, the two go hand in hand. "Agencies and organizations providing funding often want large volume for their money," Ms. Salazar said.

For example, she pointed out, objects like books can be handled in a straightforward way. It is easy to capture these materials because they are printed, and many of these titles are more or less the same size.

No one knows this better than Google, whose digitization efforts focus mainly on books.

In its quest to scan every one of the tens of millions of books ever published, Google has already digitized one million volumes. Google refuses to say how much it has spent on the venture so far, but outside experts estimate the figure at at least $5 million. The company has also been scanning and indexing academic journals to make them searchable, and is working with the Patent Office to digitize thousands of patents dating back to 1790.

David Eun, Google's vice president for content partnerships, said that rather than dwell on what is being left behind, he preferred to take a more optimistic view.

"We're talking about a huge, huge universe of content," Mr. Eun said. "If you look at the glass as half-empty it becomes too overwhelming."

Google Prevails in Earth Patent Dispute

Yesterday, Judge Douglas Woodlock of the US District Court for the District of Massachusetts dismissed the patent infringement claim by Skyline Software Systems against Keyhole, a digital mapping company that Google bought in 2004 to help create Google Earth. The judge didn't address the question of whether Skyline's patents were valid in the first place, leaving the parties until April 20 to argue that point if they wish.

Skyline filed the infringement claim back in May 2004 against Keyhole, with Google becoming a party to the suit after it purchased Keyhole in October of 2004. The patent at issue is Patent No. 6,496,189, which was issued in late 2002 and covers:

A method of providing data blocks describing three-dimensional terrain to a renderer. The data blocks belong to a hierarchical structure which includes blocks at a plurality of different resolution levels. The method includes receiving from the renderer one or more coordinates in the terrain along with indication of a respective resolution level, providing the renderer with a first data block which includes data corresponding to the one or more coordinates, from a local memory, and downloading from a remote server one or more additional data blocks which include data corresponding to the one or more coordinates if the provided block from the local memory is not at the indicated resolution level.

In plain language, this sounds like a patent for taking lots of pictures of the Earth's surface at different zoom levels and connecting them all together so that one can zoom to increased levels of resolution. Sounds pretty obvious and, of course, you don't (or at least shouldn't) get patents for obvious things. This might be why the judge didn't grant Skyline an injunction that would have shut down Google Earth last year.

The Tech Liberation Front has a nice post on the obviousness of Skyline's patent, saying that such hierarchical data organization is standard practice and is similar to how flight simulator programs (which have been around for a long time) render terrain. Such things would be better protected by copyright, which would protect the actually source code of a process like this and allow Skyline to go after those who copied their code, rather than just making it difficult for others to implement a pretty basic computer programming idea.

Avi over at Brownian Emotion says that he helped write the Keyhole/Google software and questions whether Skyline knew what it was talking about when it applied for the patent, arguing that the patent is awfully vague and looks more like Skyline was simply claiming the right to eventually create a product like Google Earth, whenever they figured out how to do it. This idea seems to play out upon reading the judge's decision.

To prove patent infringement, the patent holder "must show that the accused device contains each limitation of the asserted claim, . . . or an equivalent of the limitation." Beckson Marine
Inc. v. NFM, Inc., 292 F.3d 718, 724 (Fed. Cir. 2002). If any claim limitation is absent from the accused product, "there is no literal infringement as a matter of law." Bayer AG v. Elan
Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000).

The court found that Skyline's patent wasn't infringed as a matter of law. Because the judge couldn't find a "renderer" in Google Earth in the way described in the patent, Google was not infringing that claim of the patent. Even if elements of Google Earth performed the same function, but did so in a different manner, it wouldn't be infringement. Here the judge gets creative, analogizing coffeemakers and French presses with satellite imagery:

However, identifying a set of tasks which are performed is not the same as identifying an object which performs a set of tasks, even if the end result is the same. Consider, for example, a coffeemaker. If a "coffeemaker" is defined as "an object that (1) heats water by means of electricity, (2) causes ground coffee to come into contact with said heated water, and (3) keeps resulting liquid warm," a standard drip coffeemaker would clearly qualify. One might argue over whether an espresso maker would qualify. It is clear, however, that a method comprised of a person heating water in an electric kettle, manually pouring the water into a French press full of ground coffee, and keeping the resulting cup of coffee warm on a desk hot plate would not qualify as a "coffeemaker," even though all of the steps described were performed. If the steps are not performed by a single entity, there is no "object," and hence no "coffeemaker." Similarly, even if all of the steps described as part of the renderer are performed at some point in the Google Earth code, a contention disputed by Google, Skyline has pointed to no evidence that an identifiable "renderer" exists.

Thus, you can patent a coffeemaker, but that doesn't bestow the exclusive right to make coffee.

The judge went on to distinguish the claims in the patent from what Google Earth does, indicating throughout that Google wasn't literally doing any of the things in the patent and that Skyline failed to show any proof otherwise.

Documents:
Skyline v. Keyhole and Google, Amended Complaint.
Skyline v. Keyhole and Google, Answer and Counterclaims.
Skyline v. Keyhole, Decision (March 7, 2007).


Update (3.9.07): Avi has a far more technical explanation of the decision and explains why Judge Woodlock should be commended for doing a great job on the case. While it's a victory against a hastily granted patent, he laments the fact that a smaller company would probably have been forced to settle given the resources required to fight bogus patent claims.

What Irreparable Harm?

In January, Fox sent subpoenas and takedown notices to YouTube, demanding that yet to be aired episodes of '24' be taken down and that the users names be released to them. Absent compliance with their request, Fox argued that it would be irreparably harmed. Now it turns out that Fox won't be suing the uploaders after all, leaving the rest of us wondering whether Fox was really harmed at all by having the videos on YouTube, especially when it's becoming clear that such practices actually increase viewership.

Microsoft Rips Google Before it Goes RIP

Thomas Rubin, associate counsel at Microsoft, criticized Google for "mak[ing] money solely on the backs of other people’s content... raking in billions through advertising revenue and I.P.O.s." What the NYT misses in reporting on this is that Rubin's statement comes from a report before the American Association of Publishers, one of the groups suing Google over Google Book Search, in the wake of several publishers unveiling their own book search services and Microsoft's own path-of-least-resistance book search program. Given this background, it's arguable that this is less of a legal criticism of Google's tactics than playing it up to book publishers so they'll sign on as a way to undermine Google.

Again, the whole book search idea, at least as far as Google has gone about it, isn't about reading best selling books online without paying for them. It's about the +/- 75% of books that are no longer in print, but not in the public domain, becoming searchable so that their value can be "rediscovered." This feeds into the longtail idea that some of those titles, lost to the public because they are no longer for sale or their copyright status is unclear (largely due to publishers' bad record keeping), might be of immense value to only a handful of people. Tapping into that need will increase sales for each book and on a whole represent a huge increase in overall book sales.

Rubin has testified before Congress on this issue of orphaned works and supports a remedies-based approach, whereby if a work turned out to not be an orphan work, then the author would be paid the market value of using his or her work. Google has decided to use an opt-out system where everything gets included until someone objects, but the difference between Google and the much more limited and cautious approach taken by Microsoft comes down to a simple disagreement as to what the law requires. What the lawsuit attacking Google Book Search really comes down to is whether there is a legitimate market (ie. licensing scheme) for making a searchable database for books outside of what can be done within the legal realm of fair use. Google says no, while Microsoft, wanting to enlist publishers to combat Google, says why not so long at it helps us against Google.

Fair use allows for using brief excerpts from copyrighted materials. When an article lifts a couple lines from a book or another story, one doesn't need permission to do that. Publishers argue that they could make tons of money by licensing the right to make their books searchable, but that argument only flies if more than what fair use provides is being presented to the user. To say that creating such a database requires such a license threatens book search in general, and would imply that every use of a few lines of text requires advance permission from the rights holder, which is legally preposterous. Everything you need to know about Book Search and fair use is in this video from Lawrence Lessig.

As was reported recently, several major publishing houses have unveiled their own book search features. Anyone who knows anything about search knows that splitting content into separate silos is a terrible way to provide search. I doubt that most know who published their favorite books, much less some random book one might have read in college that you simple want to remember whether you've been quoting it correctly. I know I don't. Book search needs to be like searching the web to be effective, meaning that everything needs to be accessible from a single portal. Not to mention the cost in scanning all these books and making them searchable, especially given that Google has been willing to bear the entire cost of its project at no cost to the publishers. Makes one wonder if the publishing houses with their own databases will see a return on their investment or whether their services will simply languish and suck money away from their principle business of publishing new books.

Online, given the potential technical controls that are/will be available to track content around the net, we are approaching the point where every use of every thing can be tracked, analyzed, and thus monetized to meet some appropriate standard. That should not mean that a publisher seeking to monetize their books being included in a book search program should get to be paid extra for that privilege. They never have been able to exercise control that far and I have yet to hear a compelling argument why the Internet means they should.

Publishers were offered money from advertising on the pages that people visit (a pay per use model) rather than a blanket license fee (which the publishers are seeking). If they want more, they are free to create their own indexes for search. What they shouldn't be allowed to do is to stop others from compiling books into a searchable database within the framework of fair use. After all, copyright exists as a balance between benefiting authors - they need to be fed - and benefiting the rest of us - if we can't read the authors, they won't get fed. If Microsoft wants to continue working against fair use and a copyright regime that benefits more than large companies (see also the Zune), then that's fine. As for me, since the demo version of Office 2003 that came with my new laptop expired last month, I've been doing quite well with Google Docs. Now if only I could find a way to vote for saving fair use with my wallet like that.