Ocean of Copyright uncertainty

Standing on the shoulders of angry giants

Copyright risks
Statutory Damages
$750-150k damages

Personal Liability
for officers, directors, investors
no reliable shield against liability
everyone knows napster lawsuit
lawsuit contiued until a few months ago long since Napster went under
startups say “we will incorporate as LLC – if we lose we move on” – NOT THAT SIMPLA


Good News
4 islands of certainty (Safe Harbors)
DMCA Safe Harbor
17 U.S.C. 512
Eliminates Money Damages
Limits Injunctions

-Take monetary damages off table
limit damages to company

court can tell you to takedown or terminate bad users
incred incentive for companies in the online space to qualify for safe harbors

512(a): “Conduit” Island
If an ISP – just providing connectivity – you wont be resp if users use your pipes to infringe
Every ISP relies on this
All who provide pipes and the ping – all depend on 512(a) COnduit Island

512(b) Caching Safe Harbor
for AOL caching activities circa 1997
walled network (the way AOL was)
do local caching for internal network users
works only in model where users req content first
doesnt do any good for akamai of the world
becomes island where nothing grows

512(d) Seach Engine Island
Information location tools
infirnging website – and search engine finds it – SE may be resp for infringements – WRONG
in these circumstances (with rules) SE wont be held responsible
protects the act of linking in these contexts
in 1997 or 98 Yahoo was directory, not spidering/search co
providing a directory of links

512 (c)
Hosting Exception
if you were resp for hosting – couldnt be resp for every user and every page
need protection
number of hosting co’s got that protection in 1998
since exception has grown with progress of internet overall
Ebay has succeeded in invoking this exception

Dont have to be on the islands – but more uncertain (Bittorrent)
no surprise when you look at internet companies – all that have clustered right on these islands of uncertainty

Web Hosting and Search Safe Harbors
What happens when you combine both? _ Ebay – pioneer in using the law to cover new services not accounted for when the law was written
Ebay – host and provide search, dont actually post

nowadays – unlimited co’s that provide one or both features

Blogs (Blogger)
Music Lockering (MPRtunes)
Playlist SHaring (Avvenu)
Photo SHaring (Flickr)
Video SHaring (YouTUbe)
File Hosting (Pando)
COmbos (MOG, Etc.)

How do you avoid being held responsible? This is how
most web2.0 cos have built on these legal exceptions

How close to the waterline
if webhost or search engine – high dry ground
you are protected
a lot of other businesses – not a lot of clear cases
Myspace and YouTube – placing a bet they are on dry enough land they can avoid being sued

3. Basic features you need to do – to be on island of safety
hire a lawyer for the details

ask yourself – when you look at new businesses – see if you recognize features
1. Register a copyright agent – form + $80 check to copyright office
if you dont do this – failing to do it jeopardizes your existanc eon the island
list of companies – every reg form they have ever received
who is on or not on list is interesting
fun to see handwritten notes

2. Notice and Takedown
certainly in post YouTube world – Viacom delivering
if copyright owner complains – that piece, song, photo, belongs to me
resp to take stuff down and promptly if you want to stay on the island
rules copyright owners have to follow when they send a notice – must be specific
cant say “make sure no copy of xxx ever appears on your website
must provide specific url, actual description, number of formalities
3. Infringer Termination Policy
if you get a lot of complaints about a user (like 2 complaints) – law req you have in place and implement a policy for terminating infringers
ToS should have a termination policy

How to Stay on the island
2 ways to lose protection
esp. in Viacom/GooTube (if it even moves forward)
will continue ot come up
1. Red Flag Knowledge – if you know it is going on and dont do anything about it – you will lose safe harbor
2. If you are aware of facts and circumstances that would have been obvious – you are out
what does that mean ? Who knows
Needs clarity
YouTube argues you need to tell, with specificity – where it is going on – need takedown notice
Trouble – if employees spend a lot of time on the website and you fail to do anything about it
What did you and your employees know?
More intimate knowledge – the more risk is created
More editorial, more categorization – dont want to feature something that is obviously infiringing

2nd Way – direct financial benefit from something that was infringing that you could have controlled
More content, more eyeballs, more money
YouTube best example
No ads on the actual video pages of YouTube themselves – some protection
User Generated and Uploaded – you will see ads everywhere else
effort to make clear they are not directly benefitting from infringing videos
have to control the infringement

Really basic architecture issues
need to get a lawyer sooner rather than later

First Half DONE – How do you avoide having to get licenses for every single thing your users are uploading
make sure you are doing the things to qual for those exemptions
can do everything right and still be sued


focus and highlight flickr
a model for participation
upload and host photos
and get photos to use for other purposes
been turned into great free stock photo site
get out of the biz of stock photography – flickr will eat that business alive in short time

how does flickr do it

Creative COmmons Licenses
Do a tremendous job
support creative options
CC Licenses –
Att -No Derivs (use but cant change)
Att – No Derivs Not Commercial
Att – Non COmmercial
Att Non COmmercial – Share Alike
Att – Share ALike

Share Alike – use it but make any deriv work available

CC works – content curators web page
directory of people already doing this

Podsafe music network
hassle to get good music for podcasts
Flickr – huge repository for images
Search Funct for yahoo and google and plip
meta tagging standards
search facilitating tech to make it easy

How flickr attracts users to the website
make users interested in reusers and remixers
how to get creators and photogs to use CC
make the licensed materials findable, useful, simple

Category in Flickr Adv Search – is CC licensed photos
can drill down to modify and other criteria w/in CC
if you can find 21k photos of Rain, all for free with attribution, or on TV or website – that will make it hard for folks to charge for it in the future –
will also attract new users to flickr
not just photos for the buddies – also great alt for stock photography
creating new business opportunities as well
Flickr – can always send a message to user – saying you love a photo – auth for non-commerical use – would like to pay – would that be OK
once you attract new set of users they will find other uses for your services
nice job integrating for the re-users of the world
collects all CC categorites and allows you to browse based on combination

Vast majority of users not licensed under CC
Flickr does many things in interface for creators to opt for CC
need to explain licenses, use defaults intelligently, do it in batches

Posted in: Web2.0.
Last Modified: April 18, 2007

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