Stop SOPA

Many websites, including Wikipedia, BoingBoing, Mozilla, WordPress.org and Reddit, are going to go black tomorrow to protest the Stop Online Piracy Act (SOPA) under consideration in the U.S. House of Representatives, and the Protect Intellectual Property Act (PIPA) that's being considered by the U.S. Senate. Mashable has posted an excellent summary of SOPA, and rather than rehash those arguments, I've linked to it for your reference.

The stated purpose of SOPA is to cripple non-U.S. websites that distribute unlicensed copyrighted content, and to prevent U.S.-based sites from hosting, or even linking to, unlicensed content. The problem with SOPA is that it imposes a "death sentence" on websites that haven't been proven to have done any infringement whatsoever. SOPA front-loads the prosecution and punishment of copyright infringement cases. In the case of foreign websites, the U. S. Justice Department can request a court order to seize their domain name(s), order advertising networks and financial processing services to stop doing business with them, order search engines such as Google and Bing to drop them from their indices, and order Internet Service Providers to stop connecting to them. All of this is supposed to take place within five days after the court gives the order, and most importantly, without any notice given to the website. In short, the website can be put out of business before it has any opportunity to defend itself.

SOPA gives content owners the power to do the same things to domestic websites that encourage or facilitate copyright infringement. The Justice Department doesn't need to be involved at all. This part of the bill imposes the same "death penalty" on domestic websites, and doesn't require them to be informed until the penalty has been imposed. Even worse, the owner or operator of the site isn't required to have been the one who posted the infringing content. Infringing content could be in the form of a comment or an uploaded video posted to a user-generated content site like YouTube. It could even be a link to another website that posts infringing content.

SOPA means that every website that allows any kind of third-party content or comments would have to review everything before it's posted. It would make a service such as YouTube, which receives 24 hours of uploaded content every minute, impossible to operate. (Correction, January 23, 2012: According to its blog, YouTube is actually receiving 60 hours of video every minute.) Content providers would no longer need to give notice of infringement as required under the Digital Millennium Copyright Act, and websites would no longer be protected by the law's "safe harbor" provision if they don't knowingly encourage or participate in copyright infringement.

Let me be clear: I defend content companies' right to protect their property. However, SOPA effectively eliminates due process for website operators and creates a poisonous climate of prior restraint, where every post has to be considered infringing unless proven otherwise. An analogy would be if I, believing that a movie used some of my intellectual property, could get a court order seizing every copy of the movie from every theater playing it, or from every store and service distributing it, without giving notice to the film's distributor. By the time the studio answered the charges and got the movie back into theaters and stores, the financial damage would be incalculable.

SOPA would be fair if it required the Justice Department and content owners to give notice to the website operator before any action was taken. It would be fair if it allowed website operators to remedy the infringement, if it exists, without court action. It would be fair if it allowed website operators to defend themselves in open court before they lost their income, domain name and audience. As written, SOPA tilts the playing field decisively in favor of the content providers, most of which already have a massive advantage in legal and financial resources over website operators.

Section 111 of the Copyright Act is alive and well

In this week's videoblog, I did a piece about FilmOn.com, a U.K. company that's streaming broadcast signals from television stations in Los Angeles, as well as a variety of cable networks, across the Internet. Like ivi, FilmOn.com is depending on Section 111 of the U.S. Copyright Act, which requires television broadcasters to grant statutory (mandatory) licenses to retransmit their signals to cable systems, in return for payments made to the Copyright Office and distributed to broadcasters.

Some people (including myself) have argued that Section 111 was superseded by the 1996 Telecommunications Act, which gives broadcasters control over whether or not their signals can be retransmitted by cable systems and similar services. The Act also allows broadcasters to specify the price for retransmission rights, which is paid directly to broadcasters, not to the Copyright Office.

Last week, however, the Copyright Office issued two notices in the Federal Register: Distribution of the 2008 Cable Royalty Funds and Distribution of the 2008 Satellite Royalty Funds.  Note that the Copyright Office is still collecting royalties, and so far as they're concerned, Section 111 is still in full effect. Here's a direct quote from the Federal Register posting:

"Each year cable systems must submit royalty payments to the Register of Copyrights as required by the statutory license set forth in section 111 of the Copyright Act for the retransmission to cable subscribers of over-the-air television and radio broadcast signals. See 17 U.S.C. 111(d).  These royalties are then distributed to copyright owners whose works were included in a qualifying transmission and who timely filed  a claim for royalties. Allocation of the royalties collected occurs in one of two ways.  In the first instance, these funds will  be distributed through a negotiated settlement among the parties. 17 U.S.C. 111(d)(4)(A). If the claimants do not reach an agreement with respect to the royalties, the Copyright Royalty Judges (‘‘Judges’’) must conduct a proceeding to determine the distribution of any royalties that  remain in controversy. 17 U.S.C. 111(d)(4)(B)."

"The 'Phase I Parties' are the Program Suppliers, Joint Sports Claimants, Public Television Claimants, Commercial Television Claimants (represented by National Association of Broadcasters), Music Claimants (represented by American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and  SESAC, Inc.), Canadian Claimants, National Public Radio, and the Devotional Claimants. In Phase I of a cable royalty distribution proceeding, royalties are allocated among certain categories of broadcast programming that have been retransmitted by cable systems. The categories have traditionally been movies and syndicated television series, sports programming, commercial and noncommercial broadcaster-owned programming, religious programming, music, public radio programming, and Canadian programming."

Now, that pretty much covers every kind of programming and every kind of broadcaster. If broadcasters are relying on the Telecommunications Act, why are they still collecting royalties from the Copyright Office? It could be that there are broadcasters who don't bother to negotiate for retransmission compensation who still want to claim the statutory royalties from the Copyright Office. Nevertheless, it adds an interesting dimension to the ivi and FilmOn.com story

Google wins summary judgment against Viacom in YouTube case

(Disclaimer: I'm not a lawyer, this isn't legal advice and your mileage may vary.) Google and Viacom have been embroiled in a copyright suit for several years over YouTube. Viacom charged that Google and YouTube knowingly violated copyrights for its video content, and asked for damages of $1 billion. However, earlier today, Judge Louis Stanton of the U.S. District Court in New York ruled that Google is entitled to protection under the "Safe Harbor" provisions of the Digital Millenium Copyright Act (DMCA) and is not liable to Viacom for any copyright infringement.

The court ruled that Google/YouTube abided by all the requirements of the DMCA, and Viacom was, and is, required to state with specificity which content it believes to infringe its copyrights. The court said that Google/YouTube went beyond legal requirements by implementing a system for automatically scanning uploaded content and comparing it with a database of known copyrighted works in order to identify and take down infringing content without having to receive a DMCA notice.

The court also ruled that it's not enough for Google/YouTube to have known that there was some infringing content in its system--it's up to Viacom (or any other copyright holder) to specify the content that infringes its copyrights. When Viacom did provide specific information to Google/YouTube, the company took the content down within 24 hours in virtually every case. In short, Google has won, and Viacom is not entitled to any compensation. Viacom will undoubtedly appeal.