Viacom and YouTube Dispute – All About Copyright Licensing


Viacom has announced the first huge copyright infringement notice against YouTube. It has served YouTube with notice to remove 100,000 infringing videos.

As you know, YouTube is a site where people can post videos of just about anything. Millions of people visit the site, which made it attractive enough for Google to spend $1.65 billion dollars in stock to purchase the site. There is one problem, however. Many wonder how YouTube is any different than Napster when it comes to copyright issues.

There is absolutely nothing illegal or wrong about creating and posting a video on YouTube. Frankly, YouTube is a revolutionary site as shown by its popularity. Things get murkier, however, when people post videos that were made by others. As this article suggests, those “others” are often media companies and the companies are none to pleased that their television shows, movies and music videos are being uploaded without their consent. Viacom is one such company.

Viacom has a beef with YouTube because videos from two of its major television channels, MTV, Comedy Central and BET, are being posted like mad on YouTube. Viacom suggests that the total videos have been accessed and viewed by over 1.2 billion people, although this number should be taken with a grain of salt since no proof is offered. Regardless, the ball is clearly in YouTube’s court.

So, what can we expect to happen? Will YouTube cave and remove the videos from the site? Will the company risk being crushed in a copyright lawsuit? Any of these results are unlikely. The reason has to do with the evolution of copyright views by media entertainment companies.

When the music industry started prosecuting copyright on sites like Napster, they took a beating in the public. As Lars Ulrich of Metallica said, it was no fun being the most hated man in music. Although the music industry continues to pursue the self-destructive copyright infringement cases against kids, other media companies are taking a new approach. Instead of suing, they are negotiating licensing agreements with sites like YouTube. This creates a revenue stream from the videos, gets around the copyright problem and lets people post video without the threat of being sued.

By serving copyright infringement notice against YouTube, Viacom is not really looking to sue the site. Instead, it is most likely trying to create leverage to get the best licensing deal possible. Ultimately, you should expect to see an agreement reached and similar approaches taken by other media companies when dealing with YouTube.

When Everyone's Right-Where Can We Find the Truth?


Although this question may be a perfect intro for a theological discussion, this article is not religious. The topic here is a debate regarding the disconnect between copyright law and copyright tradition. Traditionalists contend that a consumer has the right to archive or back up his or her digital entertainment media—a process generally called space-shifting or format-shifting. On the other hand, advocates of digital rights management (DRM)—or “copy-protection”—argue that if people are allowed to bypass the built-in security measures on CDs and DVDs, the copyright owners will have no control over their intellectual property.

Both sides of the debate have justifiable claims on legitimacy. One side says they’re for the rights of the consumer, while the other favors the rights of the copyright owner. The underlying problem is based on distrust and assumptions. The traditionalists feel that because the manufacturers of new entertainment media distrust consumers so much they limit the ways consumers can use the materials they legally purchase—making even non-infringing uses impossible. The manufacturers, conversely, assume that any type of format-shifting will have an adverse impact on their market.

The Law

This whole debacle became a major concern with the passing of the Digital Millennium Copyright Act (DMCA) of 1998. The law, which was the ratification of two WIPO treaties, amended Title 17 of the United States Code. Prior to 1998, Supreme Court decisions and laws being passed in the annals of Congress were clear and consistent. Unfortunately with the passing of the DMCA (which, in part, makes it illegal to bypass DRM on a CD or DVD for any reason) the commonly accepted practice of changing one’s entertainment media from one format to another became prosecutable.

Anti-DMCA

The traditionalists, advocates of fair use, have quite a bit of legal precedent on their side. Back in the era of Betamax versus VHS, the Supreme Court ruled in Sony v. Universal, with a 5-4 decision, that it was not a copyright infringement for people to use VCRs to record television programs to watch the shows at a more convenient time. This practice was called time-shifting. The court’s justification came from the fourth item in section 107 of Title 17 of the U.S. Code, which gives as a consideration for infringement the following: “the effect of the use upon the potential market for or value of the copyrighted work.” What this means is that if the copy or duplication of the copyrighted work does not devalue it in the market, then it is not an infringement. Essentially, if a copyrighted work is broadcast on public airways, copying it for personal convenience is legal. Following that logic through, if an individual has purchased the rights of use for a product, such as a CD or DVD, as long as he or she does not distribute copies, there should be no justification for prohibiting him or her from format-shifting for convenience.

Pro-DMCA

The fans of DMCA, on the other hand, have only one thing on their side: the law. As the law currently stands, bypassing, or even telling others how to bypass security encryptions is illegal. Copyright owners have always had the sole legal right to duplicate and distribute their copyrighted work. In the years leading up to the passage of the DMCA in 1998, it was already illegal for anyone without the copyright to copy a work and redistribute it. Pirates, as they are commonly called, were already breaking the law. With the passage of the DMCA, the motion picture studios and recording companies thought they would be able to control piracy. Unfortunately, the only group over which they obtained control was their lifeblood—their customers.

The Impact

The built-in security measures, today, are easy to bypass. Because the dispersion of knowledge is so easy in the information age, anyone seeking to bypass DRM has been able to do so. Piracy has not stopped, but one thing has: the age-old right of entertainment media users to conveniently enjoy their media collections as they choose has been revoked. Consumers can no longer determine the way they enjoy their media legally. That decision is made for them in the programming department of the studios that produce the CDs or DVDs. In many cases, DRM has even inhibited legal use licensed DVD and CD players. Gone are the days of enjoying media an individual purchased on a DVD or CD through other devices, such as: a car’s tape deck, a computer, an MP3 player, a video iPod, a portable DVD player or whatever comes next. Now, being a technologically up-to-date consumer is criminal.

Where Can We Find the Truth?

So to answer the question…the truth can be found in the U.S. Code. Regardless of how little sense the Digital Millennium Copyright Act makes in real life, it is the law. Until their constituents let them know what they should do, members of Congress won’t see any reason to fix it.

Potential Remedies

Several bills are in Congress, dealing with this issue. Congressman Rick Boucher of Virginia has drafted a bill that would restore balance to the copyright laws in America. It is called the Digital Media Consumers’ Rights Act (DMCRA). The bill deals with a few other aspects beyond archiving, such as properly labeling CDs or DVDs that contain certain computer-damaging DRM so consumers do not innocently try to listen to or watch their media on their computers only to have them crash.

Congressman Lamar Smith of Texas has also introduced a bill called the Section 115 Reform Act (SIRA). Congressman Smith’s aim is to make entertainment media available to consumers in multiple formats, while ensuring artists and copyright owners are compensated. Regardless of how you feel on the subject, contact your congressmen and senators, reference Rep. Boucher’s and Rep. Smith’s bills and let them hear your thoughts. Again, if they don’t hear from their constituents, Congress will never know how to represent them.

Implied Licenses and Ownership of Intellectual Property Rights in the United Kingdom


In Robin Ray v Classic FM, the English High Court held that a contractor providing services owns the intellectual property in the materials created for the client. The decision is a useful guide to contractors as it is one of the leading cases in determining the whether a commissioner of intellectual property may use intellectual property for purposes not expressly contemplated by a written agreement.

Background

Mr Ray was a highly respected expert in classical music in England , reputed to have an encyclopaedic knowledge of classical music. He was engaged by Classic FM in the United Kingdom in 1991 to compile the radio station’s repertoire, compile playlists, categorising tracks for play lists, and rate their popularity under each of the categories. The contract did not deal with intellectual property rights. The consultancy agreement was originally for 11 months, however the work of Mr Ray proved beneficial for Classic FM, and his services were extended until 1997. Some 50,000 tracks were eventually categorised. The results of the work were incorporated into a database that was used to select music on a rotational basis, and prevent overplaying.

The project was success. After internal use for about 5 years, Classic FM proposed to licence the database to overseas companies. Mr Ray objected and commenced proceedings to prevent Classic FM licensing the use outside the UK without his permission, on the basis that he was the author of documents that were incorporated into the database.

The Decision of the High Court

Mr Justice Lightman in the High Court ruled that in the case of a consultancy, the author retained the copyright in the absence of an express or implied term to the contrary effect. Where services by a consultant are performed for an express purpose, a court will readily imply a term into a contract for services that a client is entitled to use it for that purpose. In this case, Classic FM always intended to utilise the Mr Ray’s work in the UK . It was not until 1996 that Classic FM intended to exploit Mr Ray’s work overseas. The court was not prepared to imply a licence into the contract that Classic FM would be entitled to exploit his work overseas. Classic FM was prevented from exploiting their database abroad without the consent of Mr Ray, which would require payment of license fees.

When implying licences in this way, a court will only go so far as is necessary in the circumstances to give effect to the intention of the parties. If a grant of a licence is required, the ambit of the licence will be the minimum required to give effect to the intention of the parties at the time of the contract. An implied term that copyright would be assigned to a client will be exceptionally rare, as most often an exclusive licence will have the same effect in law.

The judge held that the contractor retains the copyright in default of some express or implied term to the contrary effect. The contract may expressly state which party is entitled to the copyright, and the mere fact that the contractor has been commissioned - performed by a contractor - is insufficient to grant rights in the copyright to the client. In the absence of express rights, the client is left to establish an entitlement under the express or implied term of the contract.

Conclusion

The decision means that contractors retain the copyright in the absence of an implied or express term. An implied licence must be reasonable and equitable; necessary to give business efficacy to the contract, capable of clear expression and not contrary to any express term of the contract, and so obvious that it goes without saying. This means that a licence will be implied for the client to use the work for the stated purposes at the outset of the engagement. It is important to document the purposes of the engagement and the intended use for the copyright work created during the course of the engagement.

How To Protect What You Create With A Copyright


In the United States there are millions of people every year who create original music, research, or write books and other forms of creative expression. These are covered by the term intellectual property and are given protection under copyright laws. If you are a publisher, writer, or editor it is crucial that you are knowledgeable about copyright issues more than ever. With the Internet there has been an enormous increase in counterfeiting and pirating of books, music, and other intellectual property. A report last year from the World Customs Organization indicated over a half a billion dollars in counterfeit and pirated products were put in the marketplace globally in 2005.

Every business in the United States is susceptible to Intellectual Property theft; small businesses are at an even greater risk. Individual writers and owners of small publications offer a large cache of information for intellectual property thieves to grab, and as I pointed out above, the Internet has made it very easy to do. To guard against this happening to you or your company you need to know what your rights are.

A copyright under U.S. law protects authors of "original works of authorship" fixed in any material medium of expression. This can encompass sounds, notes, words, numbers, pictures, and virtually any other media. Works that are covered under copyright law are diverse and include artistic, architectural, literary, dramatic, audiovisual, and musical. A work does not have to be published to be covered.

According to the copyright law passed in 1976, the owner of a copyright has the exclusive right to distribute, reproduce, perform, and display their work. The rights are transferable by the owner who may license them, sell them, donate them to charity or even leave them to their heirs. According to the law, it is not legal to violate any of these rights, and if the owner of a copyright wins in a claim for copyright infringement, the court may order both preliminary and permanent injunctions barring any and all present and future infringements and may also order the surrender of the offending materials.

Many people think that there is some big process they have to go through in order to obtain a copyright. The fact of the matter is your work is protected by Copyright Law when you create it and it is placed as a copy or recorded the first time. An article you write is protected, as is a song or music whether it is in sheet music, on a CD, or both forms of media. Despite this fact it is still recommended that you register formally with the Copyright Office to establish a public record and give yourself concrete legal protection for any suits filed in court.

A copyright gives you protection for 70 years after your death or if you created the work with another it lasts 70 years after the last surviving author's death. As far as anonymous works and works that were made for hire, the time is extended to as long as 120 years from the date of creation.

Unfortunately there are no international copyrights to guarantee you copyright protection globally, but most countries recognize the Berne Convention on the Protection of Literary and Artistic Works and/or the Universal Copyright Convention. These are the top international copyright agreements for providing foreign authors with copyright protection. If you are in doubt about whether or not a work you have is protected, be sure to consult with a qualified copyright attorney. That is the only way to be absolutely sure you have all the bases covered.

Copyright - Google Gets Slapped For Copyright Theft


Well, many of us have heard of the term "Google Slap." That is when Google is the slapper. But now Google is the one that has been slapped.

Google, the Californian company that runs the world's most popular search engine, lost a court case in Brussels Belgium on 13 February 2007 where it was found that Google had breached copyright.

Copiepresse, a copyright protection specialist, was representing a group of 18 mostly French language newspapers who complained that Google was using "cached" links to offer free access to archived articles from the papers that were sold on a subscription basis.

The court ordered Google to remove the offending links, snippets of articles and all photographs from its sites. This included "Google News" which displayed the information WITHOUT the permission of the newspapers.

The Court said that if copyright owners contacted Google with a complaint then Google would have 24 hours to remove the offending content or face a fine of 25,000 Euros per day.

Apparently Google is appealing the ruling as it believes it has done nothing wrong. Well, I fail to see how Google thinks that it can display the intellectual property of another party and then when informed by that party that Google is breaching copyright how it can possibly defend that position.

Copyright theft is copyright theft.

This attitude may be the reason why so many other website and ezine publishers believe that they can steal intellectual copyright then display it for all and sundry as if it belonged to them and not the originators of the material. In many instances even the name of the copyright owners and any links to them have been removed. Clearly this is copyright theft.

Internet copyright theft has now been tested in Court and a precedent has been set.

For further information The West Australian newspaper edition of 14 February, 2007 can be referenced. Page 33 carries the full story entitled: "Google to Appeal Over Court Copyright Defeat."

Let this be a warning to all rogue website and ezine owners. Using stolen copyright will see you end up in Court and fined.

Copyright theft is a serious crime. Google has been slapped for it and it is a multi-million dollar corporation. Copyright thieves should think twice before they steal intellectual property.