Online Blasphemy - YouTube Wins Round Two of Performance Right Kerfuffle

After the decision in Garcia v Google (discussed on this very blog here) last year the question of whether an actor (or actress) has a copyright interest in their respective performance, no matter how short, has been debated hotly. The decision was appealed, and the Court of the Ninth Circuit decided to hear the matter again en banc; a decision that many of us involved in IP have waited for with anticipation. The decision was finally handed down nearly two months ago, and this writer, in shame, only now had time to discuss the case.

For the uninitiated Garcia v Google dealt with a low-budget independent movie called "Desert Warrior", in which Ms. Garcia appeared. Post filming the title and narrative of the movie was drastically changed, finally being called the "Innocence of Muslims"; a movie that arguably was quite blasphemous and offensive towards those of the Islamic faith. Ms. Garcia's appearance was a brief 5 second clip, and her performance was dubbed over in post-production. The movie incited violence and disapproval in the Middle East, with Ms. Garcia also facing several death threats as a result of her appearance in the movie.

The main crux of the case lies in Ms. Garcia's claim in a copyright interest in her performance, allowing for an injunction to be issued against Google for the movie's broadcast on their YouTube platform (and potential other platforms as well). This injunction was issued at first instance.

The Court raised the alarm right from the start, stating that "...Garcia’s theory of copyright law would result in... splintering a movie into many different “works,” even in the absence of an independent fixation", or in other words, every actor or actress in a given movie would have a copyright claim in it. Also, Ms. Garcia's part in the movie would fall under the work-for-hire doctrine, which passes on the copyright interest to the employer, leaving her with no copyright claim in the work. Ms. Garcia did not, as a final barrier to her copyright claim, fix her work in any tangible form; a requisite element under copyright in the United States for an interest in the work to arise. Through the Court's rationale, albeit quite aggressive as such, Ms. Garcia's claim was quickly dissected and dismissed and she was deemed to have no copyright claim in the work.

Free speech online; a precious commodity

Finally, the Court addressed Ms. Garcia's claim under irreparable harm. Her claim does not manifest itself through any tort-based cause of action, but through copyright and her interest in the work as an author. The Court did have sympathy for Ms. Garcia, but her action was rotten at the root, as the Court described: "This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -and incompatible with - copyright and copyright’s function as the engine of expression". One has to agree with the Court's judgment, as rightfully so copyright protects expression and not human life or its safety. While one has to appreciate that the movie has brought a significant amount of distress to her, and as such those problems should be addressed, but the way to address them is not through copyright. In the end, her claim failed under irreparable harm, as no harm was caused to the work or her claimed interest in the work as an author.

Judge Kozinski, who gave the judgment at first instance, handed down a dissenting judgment, as he saw there indeed was a claim under copyright in Ms. Garcia's small part in the movie. Through his Honor's argument, Ms. Garcia's claim stems from the acting itself, and its fixation on film. Without this, in judge Kozinski's mind "[i]f Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie". This writer, in his humble opinion, argues against judge Kozinski here, as the mere recording of an actor or actress does not necessarily create a 'work' unto its own under copyright. Should one follow this logic the movie in question could consist of hundreds, if not thousands of distinguishable works, which would lead to copyright being untenable in the film industry.

Judge Kozinski further argues that Ms. Garcia has an interest as an author, and thus should be protected from irreparable harm. Although, under precedent, an author does not themselves have to affix the work to be considered as such, an actor or actress plays no part in the fixation of a work, but merely act as a part of its fixation for another. This does not create an interest as an author, or a separate author within one work. As she is not an author she cannot face irreparable harm, even if her life is at stake, as his Honor points out at the end of his dissenting judgment.

Overall the case has been a very interesting one, and whether it goes on further remains to be seen; however, this author does not see a need for it to go beyond its current route. Whether Ms. Garcia has a copyright interest in the work is, at least arguably, an equivocal no, and her case, although very serious in nature, would create an overreaching right in copyright beyond its intended purpose.

Source: BBC News

Framed Questions - ECJ Takes on Content Framing

As social media has changed how we interact with one another, it also has profoundly changed the culture and environment where copyright (and other intellectual property rights) reside. Videos, pictures and other content can very easily go 'viral', especially through sharing via Facebook, Twitter and other websites, even sans the original source of the content. This aggressive sharing and consumption of content can clearly yield huge benefits, both monetary and other positive outcomes; however it presents a much darker side to the sharing of this content, more specifically the copying and distribution of infringing content. Whether it be re-hosting a video originally on YouTube, or copying and watermarking other people's popular images, the Internet is full of opportunistic people rearing and ready to cash in on the next 'viral' hit. Not all sharing is bad, and often websites can host content and rightfully attribute the content to its source, or just link directly to it - which presents a question: can you share copyrighted content, especially through what is called 'framing' (placing someone else's content within the confides of your own website, but not directly hosting the content), or are you infringing on the rights through linking to this content and placing in within your own website?

The case, which endeavored to answer this question, was BestWater International GmbH v Michael Mebes (judgment only available in German or French). BestWater International are a company in the business in making and selling water filtration systems, and in an effort to boost their sales, made a 2-minute promotional video and uploaded it to YouTube, undoubtedly attempting to reach the droves of water filtration enthusiasts using the site. Michael Mebes and his co-defendant Stefan Potsch are independent agents for BestWater's competitor, who embedded a video link to BestWater's promotional video on YouTube (which they themselves uploaded onto the service). BestWater subsequently sued the pair for copyright infringement, and the case finally culminated in the European Court of Justice late last year. In the absence of a judgment in English (which this writer was waiting for) the information conveyed in this post has been parsed from several sources; however hopefully represents an accurate reading of the case.

The question posed to the Court was simple: "Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website... constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?" In a lot of ways the case is similar to one discussed on this very blog on an earlier note; Svensson v Retriever. Even so, Svensson merely discussed the distribution of content, which is freely available on another website, when BestWater's focus is on framing that content within your own site, arguably presenting it, in a roundabout way, as your own. 

One should always be careful when framing things

Thinking back to Svensson, the decision in the case established, quite firmly, that if a work is communicated to the public, and is freely available, distributing that content without actually making new copies of it, does not constitute a communication to a new public and infringe copyright. Unceremoniously the Court saw that "[t]he embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [Directive 2011/29/EC] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication". 

What is key in the BestWater decision, much like in Svensson, is the authorization of the party who communicates the original work to the public. If the content is beyond the reach of most Internet users, framing the content clearly infringes copyright; however, should the party provide the content for all Internet users (i.e. freely available through services like YouTube), it will not infringe copyright. Should a third-party, without the consent of the copyright holder, upload a video to YouTube, and then promptly frame it on their website, they will be infringing copyright within the meaning of BestWater and Directive 2001/29/EC.

The two decision reflect a clear need for change in attitudes of copyright holders when posting content online. Framing applies just as well to images and sound files as it does to video, potentially causing issues to those who are not careful in their communication of their copyrighted content. This writer, for one, believes this approach is correct, even with the hazards it potentially presents. Should you choose to share content with very little regard to its restrictions, you choose to share your content with more people that you might have intended to, and for users to be punished for your mistake seems highly inequitable. Nevertheless, individuals and companies should be more careful in their content sharing, especially when considering the openness of the Internet, and the potential benefits more open sharing can give you.

Source: IPKat

Free Speech and Copyright - When Copyrights and Personal Rights are at Odds

Although intellectual property law protects expression in its multitude of applications sometimes it comes at odds with the rights that are conveyed through the aforementioned expression, whether it was intended or not. Previous examples are the potential curtailing of criticism by using trademarks, where the line between the intended protection offered by trademarks and its potential misuse against freedom of speech came to light. Copyright in itself can potentially be used in a similar fashion, although most common law jurisdictions do expressly allow for copyrighted content to be used for criticism. A recent instance in the United States faced this very conundrum; can copyright trump your right to criticize another?

The case in question was Garcia v Google, which concerned Ms. Cindy Lee Garcia, who acted in a small role in a movie titled "Desert Warrior" (a working title at the time of casting). Even though Ms. Garcia had participated in the filming of the movie, the finished film never saw the light of day. Some time after Ms. Garcia's scene was used in the infamous YouTube video "Innocence of Muslims", in which her scene was partially dubbed having her say "is Mohammed a child molester?". As a result Ms. Garcia soon began receiving death threats from various parties, and she subsequently took precautions and asked Google to remove the aforementioned video relying on the Digital Millennium Copyright Act and its take-down provisions. Google refused her initial reasoning for the video's removal, finally having Ms. Garcia resort to a copyright claim over the video's content, asserting it infringed her copyright in her performance.

Although the case discussed Ms. Garcia's copyright in the film quite extensively, it remains but worth a mention. In Chief Justice Kozinski's judgment Ms. Garcia did have a copyright interest in the film, even though her part was only 5 seconds long in a 13 minute video. As a copyright interest was seen by the court Google were ordered to remove the video from YouTube due to it infringing the aforementioned rights. In Chief Justice Kozinski's view this was a matter of balancing equities, in other words, an assessment of the balance of fairness, and saw that Ms. Garcia's rights in the video overshadowed those afforded in the First Amendment of the American Constitution through free speech. Her security was also a consideration in this assessment; a truly sad result of her unwilling part in the video.

Compliance, or passive aggressiveness?

What should be discussed in this instance, and has rightfully so become the vocal point of this case, is whether copyright should be able to be used to curtail free speech. As Google argued in the case: "[a] court order requiring removal from YouTube of the Film or any portion thereof would impose a substantial burden on free expression, without preventing any future harm to [Ms. Garcia]". In the majority's opinion Ms. Garcia only had the likelihood of success in her claim, or in other words, potentially had a copyright interest in the work, and the majority subsequently saw that this potential interest would weigh heavier than the public interest under free speech. Commenting on this, in his dissenting judgment, Justice Smith saw that "...the law and facts do not clearly demonstrate how granting a preliminary injunction in Garcia's favor would serve the public interest". Clearly one can agree with Justice Smith in this instance, at least under these facts. Although this writer fully accepts that Ms. Garcia's safety is paramount and should be a consideration in this instance, her argument fails in the uncertainty of her copyright interest and lack of concrete harm caused. Her protection should not be handled through copyright, and as stated by Justice Smith: "It's disappointing, though perhaps not surprising, that Garcia needed to sue in order to protect herself and her rights".

The Garcia case is an unfortunate result of unforeseen circumstances and the infamy to which the video rose. The decision has since come to a vote over whether the 9th Circuit Court of Appeals should rehear the case. The video's infamy served a two-fold purpose when gauged under US law; it started a conversation over religion and attitude's towards it, however it also caused severe distress to Ms. Garcia and even fear for her life. Her argument through copyright was flimsy at best, but seemingly was her only avenue for respite. The majority's view on the matter can be argued to be incorrect, and does not fairly assess the balance between her alleged copyright interest and the public interest. As Google stated: "...[o]ur laws permit even the vilest criticisms of governments, political leaders, and religious figures as legitimate exercises in free speech", and this right should be protected, although not used as a veil to protect those who wish to blatantly infringe copyright under the guise of free speech. Even though copyright and free speech do overlap quite extensively, their relationship does come with a price, and each case will present a different situation where the court will have to find the right spot where protection is afforded, but not at the expense of free speech. Copyright serves as a shield to those expressing themselves, and it should not be used to stifle others; something which clearly was not Ms. Garcia's intention in her action.

Source: Reuters

Google v Viacom Legal Marathon Ends

Seven years is a long time, both for canines and in litigation, and one such marathon has just come to a close as Google and Viacom have agreed to settle their prolonged clash. Having started in 2007 the legal struggle has shown just how valuable copyrighted content and its use for other purposes is for both parties involved.

The initial proceedings were brought on by Viacom over the use of its content, which was uploaded onto the video sharing website YouTube; one which has been owned by Google since 2006. Viacom sought over 1 billion dollars worth of damages, pertaining to over 100,000 different clips on the website. Google argued that per the safe harbor provisions (more in-depth discussion on this particular area can be found here) in the Digital Millennium Copyright Act the search engine giant could not be liable for the infringement of its users who upload said content onto their website.

Rover was puzzled by the process entirely

Three years later the District Court of New York ruled in its summary judgment that Google was protected by the safe harbor provisions, much to the chagrin of Viacom. The decision was subsequently appealed, and took another two years for the matter to face its second decision by the Court of Appeal's revival of Viacom's appeal. The matter was yet again brought to the District Court the following year, where Justice Stanton upheld his previous decision three years earlier.

This is where the situation has stood, and as said the parties have agreed to finally put the matter to rest and settle. The terms of the agreement were not released, however it has been noted by ReCode that no money has been exchanged. Arguably this is a sensible approach by both parties, and brings one of the more gargantuan claims in copyright's modern history to an end. As has been speculated the settlement could also relate to newer sharing models by Google and content owners, where part of the revenue made through their videos, uploaded legally or not, and thus gives Viacom the monetary incentive they want for their content.

The parties released a joint statement declaring that "[t]his settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together", clearly showing a more amicable ending to the saga. This further strengthens the relevance of the DMCA safe harbor provisions in relation to video streaming websites, and clears the potential hazard that a ruling against Google would have caused for the Internet.

Source: BBC

Liberation Music Takes on Lawrence Lessig

The haven of the Internet for all that is video, YouTube, often presents an interesting situation for both copyright holders and content distributors. While there are guidelines and measures in place on YouTube's part to prevent infringing material from being uploaded to the website, often this type of content slips through the cracks. In order to address issues such as this, content owners can submit a copyright infringement notification, effectively having the video removed from the service. There have been instances where content has been frivolously claimed to infringing copyright, causing legitimate videos to be removed from the site when there really is no basis for such a claim. In a recent turn of events such a claim was submitted over a video of a lecture by Lawrence Lessig, arguably one of the greatest legal minds in modern copyright; and Mr. Lessig chose to take action.

The Electric Freedom Foundation has taken action on behalf of Mr. Lessig in a recent complaint to the District Court of Massachusetts which involves the takedown of a lecture video by Mr. Lessig entitled "Open". In their complaint the EFF argue that Liberation Music, an Australian record company, have frivolously claimed that Mr. Lessig's lecture, which contained a short piece of the song Lisztomania by Phoenix, infringed their copyright due to the use of the song which is owned by the record company. The EFF claim that the use of the song fell under fair use, and therefore would not be an infringement of copyright.

In addition to seeking the use of the song to being declared fair, Mr. Lessig is also seeking damages under 17 USC § 512, which limits the liability of parties in relation to materials online. While the provision protects certain uses of materials it also provides relief in the instance of misrepresentation, which means that should a copyright holder submit a claim for infringement, knowing that it does not, they can be held liable for damages.

Lawrence Lessig was just as baffled as you were over the claims

In expressing his reason to take action Mr. Lessig stated that: "The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them... I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight." Given the trigger-happy nature of some DMCA takedown claims, Mr. Lessig's position can be argued to being completely valid, but raises the concerning notion that it needed to happen to one of the premier figures of copyright for there to be action taken against these misuses. Should  Mr. Lessig prevail in his claim, companies surely should be more careful when submitting their claims in the future, and providing an avenue for any frivolous claims should the companies not take adequate steps to insure their claims are valid.

Clearly this matter will be taken to court, as Mr. Lessig's intentions are not to seeking merely monetary compensation, but to set a precedent. The future of the case shall be discussed once it has been heard in the District Court sometime later this year.

Source: Ars Technica

Copyright and Social Media - Viacom takes on YouTube

As people use various social media outlets more and more, their relation to copyright and possible issues they present become ever more prevalent. Could social media websites such as YouTube and Facebook be infringing copyright through their users' submitted content? With YouTube receiving over 100 hours of video every minute, some of which clearly being copyrighted material, it was only a matter of time before the courts had to address this issue. Media giant Viacom took it upon themselves to bring this matter forth, suing the video hosting service for copyright infringement.

The lengthy legal battle began back in 2010, when the matter was taken to the New York District Court in the case of Viacom v YouTube. The defendant argued, in their application for summary judgment, that they were protected from being held liable under the safe harbor provisions in the Digital Millennium Copyright Act. Should YouTube have lacked actual knowledge of any infringing material or acts being conducted in their service; would not be aware of any facts or circumstances making such activity apparent; and have acted promptly on any knowledge of such acts or materials being published by removing them, they would be exempt from liability. In Viacom's argument, for partial summary judgment, YouTube had actual knowledge and were aware of facts and circumstances which made such acts apparent, but did not act upon that knowledge to stop it; they received financial benefit from this infringing activity and could control it; and did not result solely from providing storage and direction of a user in their facilitation of that content as specified in the section. In the court's conclusion YouTube did not infringe copyright and were safe under the provisions as a service provider. Even though the site did contain infringing material, YouTube's prompt removal of that content when notified of it prevented it from being liable. Should they have not acted upon the knowledge of the material, they could have been liable.

In taking things further, Viacom appealed, and their case was heard in late 2012 in the New York Court of Appeals. In the decision the court saw that the judge at first instance had not considered the issues of YouTube's awareness of the material or had actual knowledge of any specific infringements; whether they had 'willfully blinded' themselves, in other words ignored, the infringements; whether they had the right and ability to control that activity; and whether the content was syndicated, in other words controlled, by a third party (the user), only using the service as a means of storage and direction. In that light the case was sent back to the District Court for final summary judgment.

A plethora of possibilities

In its final decision the District Court saw that YouTube was indeed safe under the DMCA safe harbor provisions. The service had not willfully blinded itself to the infringing content, which was found through evidence in the form of internal emails between executives. Even though the exchanges did identify specific content that was infringing and discussed their removal, in themselves they were not enough to showcase any level of ignorance through choice. The site also did not have the right and ability to control users activities, as this would have meant an ability to do something beyond the mere typical control of a website. Finally their potential financial gain was not seen as an issue, as they did not encourage the uploading of infringing material, nor did they have active control over the content which was uploaded (pre-screening the videos etc.) In its judgment the court threw out Viacom's case and found in favor of the defendant.

So after years of litigation, what can we say about the relationship between copyright and social media? The relationship does still remain a complex one, and the nuances of each service provide different aspects that need to be assessed. What can be taken away from the Viacom litigation is the potential issue of "willful blindness", as websites cannot simply abuse the DMCA provision in the guise of not knowing that infringing acts are occurring. In short, ignorance is no defense if it's through choice. Websites don't have to take an active role necessarily in screening everything that is posted, but do have to act once informed of any misuses. As social media grows and evolves, it will provide newer challenges and potential issues going forward, but as it stands, the Viacom case gives us a great illustration of how social media and copyright interact.

Thoughts on the Canadian Copyright Modernization Act 2012

In the wake of highly impacting cases in the Canadian courts, one of which was discussed on this very blog not too long ago, the Canadian Parliament enacted a piece of legislation aiming to bring the Canadian copyright laws to the 21st century; the Copyright Modernization Act 2012.

The worst copyright abusers of them all

The Act made several changes to the existing Copyright Act, adding a categorical exception for educational use, one which is absent from its Australian counterpart for example. This exception bares significant weight in today's world, providing a means for schools to give students copied materials from copyrighted works and to teach more efficiently and broadly. There clearly is no competing interest in doing so, and allows for both poorer schools and students alike to utilize materials otherwise not in their means to acquire.  Several copyright collectives opposed the education provisions, and much to their chagrin, they were enacted and the breadth of the provisions is quite substantial. The addition of this exception makes sense both from a legal and a human perspective. After the decision of Alberta (Education) v Canadian Copyright Licensing Agency, which extended the previous fair dealing exceptions to cover educational purposes through some clever legal argumentation, there seemed to be no reason to attempt to prevent this exception from being enacted. Also looking at things from the perspective of a potential parent some day, the freer use of material in an educational setting will enable future generations to learn more effectively.

The second exception added in the Act is one which is yet to see an equal in any legislature in the world; the use of copyrighted material in non-commercial content made by users. What the provision allowed was the creation of new works using older copyrighted material such as songs, videos etc, so long as the the use of those works is for non-commercial purposes. Often cited as the "mash-up" provision, it provides a great tool for users to create a variety of works without the fear of legal repercussions. Some questions do remain however:

What is a non-commercial purpose, and could the purpose of the work change over time? A perfect example of this would be videos on YouTube. One might initially make a hilarious video of your cat meowing along to a popular song or yourself hilariously singing along to one, for the purpose of sharing your pet's or your own escapades with that of a select few or just the comedy appreciating populous at large. When posting that video your intention was probably not commercial, or at least you didn't believe or think you'd make money off of that video. But what if it goes viral and all of a sudden you have the opportunity to make a few bucks? Would the purpose of that video change at that point and become a commercial one, even after it would explode in terms of viewership years later? This presents a scenario that would clearly be one for judges to look at pertaining to each given situation, but it does present some ambiguity as to the application of this particular exception.

High Schoolers mashing it up

Second is the effect that websites have as the sharing platforms for content, potentially impacting its commerciality. Lets look at another scenario: A new start-up website encourages and helps distribute disseminated content, using the Canadian provision as the means to allow users to do so. The users themselves don't get paid for the content, but the large amounts of shared content containing copyrighted works used in user-created works does spur and increase in website traffic, profiting the website and its owners. The purpose for the videos was not, much like in the YouTube example, commercial in itself, but purely one where other users wished to share their videos with other users in that platform. Would that purpose constitute as a commercial one if it profits the website? Would the encouragement to disseminate and share content change their purpose in itself? Again, questions like this would remain for the judiciary to decide should they become contested in the courts.

Overall the Copyright Modernization Act does expand and allow for better and wider uses of content, both on a personal user level and on a wider scale. It does address issues which have evolved through the use of mediums such as the Internet, but still some ambiguity remains. There have been no cases dealing with the shiny new provisions, but with content sharing being such a big part of modern Internet interaction, they undoubtedly will be litigated on in the future.