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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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April 7, 2011

Facebook and Takedown Notices

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Posted by Alan Wexelblat

A few days ago I pointed at the underreported relevance of Viacom v YouTube and the associated ideas of safe harbor and takedown notices. I've since gotten a private communication of frustration from someone who believes Facebook is potentially blocking this kind of arrangement from working.

Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.

The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.

The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?

I'm not happy with either answer.

Comments (10) + TrackBacks (0) | Category: Big Thoughts


COMMENTS

1. Chris on April 7, 2011 10:06 AM writes...

As long as the "infringing" content is only displayed to the user's Friends, I think the problem is more academic than practical.

Walled gardens are not a bad thing. Obviously, they serve a need from the user's perspective. But in practice, they limit the scope (and therefore harm) of any infringement.

Chasing micro-scale infringers is the game played by the RIAA and RightHaven, (and is the end served by the DMCA Takedown process), but that doesn't mean that it's automatically the best way to advance the policy goals that underlie copyright law. Solve the problem, don't treat one remedy as sacred.

More globally, I can't believe you're even considering "balancing" copyright with personal privacy. Take Facebook out of the equation, and you can see why: I invite 20 friends over to a party, and I put on the video I shot at the recent concert/ballgame/whatever.

I'm "infringing" in the same way the Facebook user is -- but nobody's arguing that I need to remove the locks on my house, so your colleague can easily address the "infringement."

Permalink to Comment

2. DrWex on April 7, 2011 10:46 AM writes...

I think it's not an equivalent example. A single private home showing is not equal to making something available to 300 people in perpetuity. I forget what the average number of "friends" is for a facebook user, but it's almost certainly a lot more than can fit in my living room.

Second, I agree that it's largely academic except insofar as the person here is doing his best to abide by an agreement made in order to get revenue. We've talked a lot about sponsorship models on Copyfight and one of the drawbacks of those models is that sponsor money often comes with strings attached. The lack of multiple sources of money means that creative people often have to accept strings-attached sponsorship in order to get their events or plays or shows or whatever put on.

I don't think the balance is between copyright and personal privacy. I think the question is whether the creator of a walled garden has an obligation beyond that of a fully open system if they want to play by the spirit of the Copyright Act rules. As I noted in the earlier blog entry, the safe harbor provisions have been extremely valuable and they are under attack. Until we develop better alternatives I believe it's in our interest to make those rules work as best we can.

Permalink to Comment

3. Elf on April 7, 2011 4:26 PM writes...

(Disclaimer: IANAL) I think viewing by a limited crowd (even if it's larger than fits in a living room) inside a walled garden is very likely fair use. Compare to "playing music at a party in my back yard."

Consider:
1. The purpose and character of the use:
Noncommercial. Share-with-friends, not exactly educational, but social, which may not be available in a commercial venue. Possibly allowing for review & commentary not available in the official venue. May be displayed with context relating it to other pop culture events; may inspire parody in comments; may be discussed for meanings and relevance. Purpose seems to lean towards fair use.
2. The nature of the copyrighted work
Commercial, for-profit, published, fiction. No question that the original wants to make money somehow, and since it's not packed with science that impedes other research if restricted, this probably leans against fair use.
3. The amount and substantiality of the portion used
Oh, let's say they used all of it. A whole music video, a whole episode. Leans against fair use. (If the clips being used are only partial, this might be different.)
4. The effect of the use upon the potential market for, or value of, the copyrighted work
This is the kicker. Does showing it in the walled garden have an impact on sales? Does it decrease market value? The copyright holder wants to claim yes, of course, if they saw it for free they won't pay for a subscription to our site, won't buy the DVD. But that's not necessarily true. (Are Rowling's book sales failing because people have made bootleg Harry Potter ebooks?) If the original is available "for free" to anyone with Cable TV and a DVR, it's harder to prove damages.

If the original's only available by cable/sat subscription or on disc, not on the internet, there's room to argue that it's not competing at all--people who *prefer* their vids online have no other option. It's visible to a limited group, not the entire public on the internet. And if the Facebook version is a low-res, cropped-into-pieces version, it can be argued as advertising, not detrimental to sales at all.

Two for, two against, with the monetary aspects leaning for fair use.

I don't see how any special allowances need to be made here. If someone mails a copy of a CD to 50 people, the post office isn't required to start inspecting packages on demand and showing the RIAA what kinds of CDs are being sent. It's the same kind of situation.

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4. DrWex on April 8, 2011 2:01 PM writes...

Elf: I think your analysis is a reasonable one and I'm not sure how a judge would come down on it, but I think it's missing the point. The fair use exemption can be raised as a defense against a charge of copyright infringement once the matter is in court. Fair use is not a defense against a request to remove copyrighted material. If you believe you've been asked to remove some material in error (e.g. the person asking for it to be taken down isn't the copyright holder, as SFWA was not in its misguided effort to enforce Philip K Dick coprights) then you can deliver that evidence to the hosting entity, who should then reinstate your material.

However, the problem occurs earlier. The problem here is that the copyright holder is not able to inspect the alleged infringing material to see if a takedown notice should be sent in the first place. That's at least two steps before you'd get to consider issues of fair use - even if it is fair use that's not a reason to block someone from checking to see if his copyrighted material is being used by someone else. It's the blocking process that's objectionable, not the potential outcomes.

Permalink to Comment

5. Garrett on April 13, 2011 11:35 PM writes...

"...the copyright holder is not able to inspect the alleged infringing material to see if a takedown notice should be sent in the first place."

Appropriately so. If they wish to enter into a court case to compel discovery then let them do so, otherwise let them try and discover the material as anyone else would have to. You are correct in determination of fair use is premature, but your concept of entitled discovery and inspection is also overestimated.

Copyright is not a privileged right. The enforcement of copyright monopolies have to be appropriately placed in a list of priorities valuable to the population and in this case I would place their importance to be less than that of privacy with personal information.

Very Respectfully,
Garrett Heaton

Permalink to Comment

6. DrWex on April 15, 2011 1:54 PM writes...

Garrett, I'm not sure it's premature. If we believe that the Copyright Act rightly places the burden on the copyright holder to determine infringement (and thereby shields the provider) then you can't put undue restrictions in the way of the holder. Nobody's asking for discovery in a criminal sense, as for example when the Cartel ask for a name to correspond with an IP address in order to bring charges. The matter is purely between the copyright holder and the provider (ISP or FaceBook) in order to determine if a takedown notice is appropriate. I don't think rules of evidentiary discovery are the right set of rules to use here.

Permalink to Comment

7. Anonymous on April 30, 2011 4:32 PM writes...

A related question: what exactly are these live performances that are being recorded?

If they are scripted theatrical plays or musical acts, then the live performance itself has a copyright, and it's possible for a home-made video to infringe that copyright.

On the other hand, if they are, say, sporting events, then the live "performance" has no copyright, being an unscripted sequence of events without much creative design to it. The league may have a deal with the venue that the venue prohibit anyone other than XYZ Broadcasting Inc. from recording on the premises, which the venue then uses its property rights in its land and contractual language in tickets to enforce, but:

a) An unauthorized recording is then not a copyright infringement by the recorder, but a contract breach between the recorder and the venue. The copyright in the recording is vested in the recorder and the recorder has the right, under copyright law, to upload it to YouTube. A venue-issued or league-issued takedown to YouTube would be a DMCA abuse, as they do not hold the copyright. Furthermore, they have no contractual arrangement with YouTube under which they could compel YouTube to remove the video. Their sole remedy is to hassle the recorder for his breach of contract.

2. If the recorder did not record on the venue's premises or buy a ticket, they have no recourse whatsoever -- for instance, if they were able to film the game with a powerful zoom lens from their own rooftop, angling down into the (open-air) stadium. The game was visible from publicly and privately owned spaces off stadium grounds. The venue can only legally prevent such recording by closing its dome (if it has one) or building higher walls/stands and forbidding overflights by unauthorized private aircraft within whatever altitude range falls within their private land rights to control.

The only complication I can foresee here is if the venue tries to sneak language into the ticket legalese that purports to assign the copyrights of any recordings made to the venue or the league. I'm not sure how well such a thing would fly in court, though, and there's the (eventual) matter of termination rights. I would hope the courts would not recognize an assignment of copyright via unread fine-print as valid, though, requiring a clear, separate, signed copyright-assignment document, and that it specify a particular copyrighted work or work-to-be rather than a vague "anything that this guy might record while on our land" type specification.

Anything like that has further possible loopholes, of course. For instance, if it assigns copyrights of recordings made on stadium grounds, what happens if someone sneaks a video camera in that does not record at all, but rather streams the video over the internet to a machine located off the stadium grounds, which does the actual recording? Copyright is not even vested in something until it is "fixed in a tangible medium", so the actual creation of the copyright happens nowhere near the stadium. Can language in the tickets still assign that copyright at all, let alone without having to be very carefully worded?

Permalink to Comment

8. Anonymous on May 3, 2011 2:53 PM writes...

Ok... you are at this party, and your friend does this really cool break dancing or something, and you catch it on film for him, and he wants to post it to his facebook. Problem is the dancing is to a copyrighted song, which is what nearly all dancing is done to.... So in the bleak world where we take copyrights so seriously, this music must be stripped from the video unless your friend obtains permission from some difficult to reach pop star or record label... which in the age of phone cameras with instant upload to facebook functionality, even if permission is easily obtained technicality, the technicality would be the greatest inconvenience and barrier to sharing this art.

So essentially... just regular old copyright already borders on unbearably stifling to the art of dance. Think about this. Nearly all dance is derivative work. I mean 99.999999%. And the current system is extremely unfair to such art forms.

If a ballroom studio has a showcase day where their students perform publicly... Say at a mall, what then? It happens all the time, I am doubtful that everyone is getting permission, but technically I think legally they probably should be. This is just too draconian.

Permalink to Comment

9. Athul Kris on May 11, 2011 12:14 AM writes...

Dear Experts,can I ask you a question. If I am creating a community fan page on facebook and posts good images of architectural and other design works copied from the websites of reputed sites (ofcoure by giving due credit to the magazines, websites concerned - as foot note ) will I be responsible for copy right infringement ? Can some some one help pls. If I am doing anything wrong by doing so how can I keep my self safe from possible legal actions if any.

Permalink to Comment

10. DrWex on May 19, 2011 7:22 AM writes...

Athul: If you've copied someone else's images without their consent it's likely a copyright violation.

The safest possible course is to remove images you've copied. Alternatively you can check the source sites and see what sort of policy they have for re-use of their images. Generally people frown less on linking to something than outright copying it.

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