Crash Course on Copyrights

by Carl Weiss

If you work the web you need to be cognizant about copyright issues.  What most people who publish blogs and social posts online do not realize is that for the most part, the writer relinquishes all rights to the publisher when it comes to online publications.  That's right, Virginia, all the blogs, social posts and tweets you sent out to the Internet now belong to the folks at Google and Twitter and Facebook.  Add to this the fact that you can still be held liable for copyright infringement or even sued for libel on anything you post online and this adds up to double indemnity for everyone concerned.

Who Owns What Online?

To make matters worse, there is recent legislation that even makes you liable for everything from illicitly  copying music and videos from the Internet to unlocking your cellphone.  As of the publication of this blog it is still illegal for you to unlock any phone bought after January 2013 so that you can use it on another cellphone network.  This move actually contravenes laws created back in 2006 and 2010 that permitted cellphone users to unlock their own phones.  

A recent article from the Bangor Daily News states, " Following a recent pitch from the wireless industry, the library determined in its most recent review that consumers no longer need the exception. Carriers say they unlock users’ phones under many conditions, and customers can find phones that are unlocked from the start. The wireless industry, meanwhile, insists that preventing users from unlocking their phones is an important protection of its business model, under which wireless providers subsidize the purchase of phones when customers sign up for a lengthy service contract.

But why should the government guarantee the viability of that business model — especially at the threat of criminal penalty? And why should copyright law be misused to do it? The industry has other tools available, beginning with hefty penalties for breaking a contract, to make the costs and benefits of these arrangements explicit to consumers. If the business model is indeed viable, companies should flourish under those conditions, as they did during the years in which mobile customers had the Library of Congress’s permission to unlock their phones.

In response to an online petition, R. David Edelman, President Barack Obama’s senior adviser for Internet, innovation and privacy, announced that the White House would support “narrow legislative fixes” to change the phone-unlocking policy permanently. “Neither criminal law nor technological locks,” he wrote, “should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.” What, though, about those who want to pay an early-termination fee to break their service agreements? Or those who want to use their phones on different networks while abroad without asking for permission? We can’t think of a good reason why they should be subject to the threat of criminal sanction for unlocking their devices. Neither, we trust, will Congress as it examines the issue."

The Bigger They Are...

Don't feel bad, because many of the biggest online companies in the world have been dragged into the 

Image via CrunchBase

copyright infringement fracas, including Google, which has had to defend itself from lawsuits involving everything from multinational conglomerates to European nations.  Everyone from the Author's Guild to Viacom to Germany have sued Google in the past with mixed results.  Google won over Viacom when the judge ruled that the US based YouTube was protected under copyright law.  They also won the suit filed against them in Germany which concerned the use and display of thumbnail images that popped up as mixed media in Google searches. However they weren't so lucky when they were forced to settle the lawsuit with the Author's Guild to the tune of $125 million.

Google has settled the class action litigation entitled The Authors Guild, Inc., et al. v. Google Inc., which alleged that Google Book Search, including the company’s practice of scanning books to distribute them online, violated the copyrights of publishers and authors. Subject to final court approval, the settlement calls for Google to pay $125 million to litigants and clears the way for Google to continue scanning books. It also establishes some novel services and distribution mechanisms for the future.

The plaintiffs suing Google included The Authors Guild (and individual authors) and the Association of American Publishers, which includes The McGraw-Hill Companies, Pearson, John Wiley & Sons, and Simon & Schuster. The plaintiffs claimed that Google’s plan to scan and distribute part of all of copyrighted books online, without the explicit permission of the authors and publishers, was a violation of US copyright law.

Now that the cases have been tentatively settled, a “Book Rights Registry” is being created “to resolve existing claims by authors and publishers and to cover legal fees.” That will be funded by Google’s $125 million settlement payment.

Back to Basics

While lawsuits against major online players continues to rear their ugly heads from time to time, this dilemma is almost as old as the World Wide Web itself.  In fact back in 1998 the Digital Millenium Copyright Act  was passed that created a safe harbor for online service providers by shielding them from their own acts of direct copyright infringement as well as shielding them from liability for infringement caused by others on their network.  

An excerpt from Wikipedia concerning the Online Copyright Infringement Liability Limitation Act states that, "The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information”^[1] when updating copyright norms for the digital age. In the context of Internet intermediaries, OCILLA attempts to strike this balance by immunizing OSP’s for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that OSP’s comply with two general requirements protecting the rights of authors.

First, the OSP must “adopt and reasonably implement a policy” of addressing and terminating accounts of users who are found to be “repeat infringers.” Second, the OSP must accommodate and not interfere with “standard technical measures.” OSPs may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting, caching, storing, or linking  to infringing material. An OSP who complies with the requirements for a given safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional 

Image via CrunchBase

requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunizes OSPs such as YouTube that might inadvertently host infringing material uploaded by users."

While OCILLA’s passage clearly represented a victory for telecom groups over powerful copyright interests who wanted service providers to be held liable for the acts of their users, the copyright owners as it turned out obtained valuable concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires online service providers seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, as well as disclosing information about users who are purportedly violate the letter of the law. The OSP also agrees to remove repeat offenders and to receive no direct financial benefit from the presence of infringed material.  

This latter inclusion is a spinoff from the 2001 lawsuit in which A&M Records sued Napster.  Started by 18-year-old college student Shawn Fanning, If you will recall, Napster allowed users to download digital music from other user's machines.    Unlike many other peer-to-peer services, Napster not only created a list of indexed user files, they directly profited from the service.  In essence Napster made money by allowing others to virtually strip mine songs from other sites without paying the musicians who created them or the labels that produced them a fee.  As a result, music industry revenues took a precipitous fall and have not truly recovered since.

Watching the Watchers

With the prevalence of file sharing sites and software, it isn't only the music industry that is effected.  The motion picture industry and television networks have also found fault with the Internet.  So much so that last week the Copyright Alert System was launched.  

Created by the recording and film industry, it essentially deputizes copyright holders who stealthily monitor peer-to-peer networks for illegal sharing of movies, TV shows, and music. When they notice material is being illegally shared, they contact the crook's ISP, which in turn will send a warning message to the subscriber. After six strikes, the ISP will do more than spam you; it can choose to slow your access speed, temporarily downgrade you to a lower-tier service, or automatically direct you to a special landing page until you contact them or complete an online education program.
Read more

While the Recording Industry Association of America and the Motion Picture Association of America insist that they aren't out to persecute offenders, appealing any alleged violations will cost the accused a minimum of $35. That the CAS is targeted toward consumers and not major criminal elements is apparent when you consider the fact that cybercriminals have the ability to mask the origin of their act of piracy.  So what the CAS amounts to in the eyes of many watchdog groups is nothing short of online vigilantism.

What this and other online copyright legislation mean to you and I is that we all need to watch our P's and Q's. Other legislation like the 2012 Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) also provided search engines, online advertising companies and payment processors with the ability to sever ties with accused copyright violators at will. CAS even provides online service providers with the ability to slow a user's access speed, or automatically direct perceived violators to a landing page until contacted by the purported offender.

An article on Business Insider entitled The Dumbest Examples of Online Copyright Law Enforcement, states that, " In the last several years, the DMCA's notice and takedown provisions have been used by less than scrupulous parties to bully websites into removing competitor content which, more often than not, did not infringe any of the parties' rights. For example:

·         "Paranormalist" Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic's special abilities. The poster's YouTube account was also suspended.

·         Competitors of dancer/model/actress Elizabeth "Sky" Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress' pages based on nonsense claims of trademark infringement.

·         Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website Hotfile.com to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.)

In each of the above cases, the innocent parties were ultimately successful in getting their content back online but only after having had their content down for, at minimum, the two week period that the DMCA sets out for takedown counter-notices.  In the above example, Elizabeth Sky was awarded $78,000 for damage caused to her "online presence."  Of course, the above examples made the news because the victims had the resources to get lawyers and fight back. When it comes to young startups, such successful outcomes are far less likely.  Now enter SOPA, the newest, biggest bully in the yard."

While there is no question that online piracy and other forms of digital copyright infringement are a serious and costly blight to businesses large and small, it seems that government has provided industry with just the kind of clout that many Internet advocates believe target consumers to the detriment of all concerned.  

Carl Weiss is president of WSquared Media Group, a digital marketing agency located in Jacksonville, Florida.  He is also owner of Jacksonville Video.  You can hear Carl live at 4pm Eastern every Tuesday on Blog Talk Radio.