From a former student who always has interesting things to say on Internet law topics:

Say, doesn’t this sound like the Betamax case?  Wouldn’t the “time-shifting” argument held by the Supreme Court still hold?

The Sony decision did not create an absolute right to time-shift. The Court recognized time-shifting to be fair use in that case–by a 5-4 decision, not a slam dunk–in part because the recorded programs had originally been broadcast for users to watch them once, and most Betamax users watched their recorded programs once, shifting only the time at which they watched them. (Another reason the Court ruled for Sony is that the plaintiffs represented only a small portion of copyright holders affected by video recording. Other copyright holders–the sports networks, PBS, Mr. Rogers–did not object to their content being recorded by Betamax users.) YouTube is not perfectly analogous to the old broadcast networks, Sony does not fit perfectly.

“Astonishing” Criminal Liability for YouTube Video

In another European case I’ve blogged about before (herehere, and here), yesterday an Italian court convicted three Google executives of criminal privacy violations in a case arising out of a 2006 YouTube video of the bullying of an autistic boy, posted to YouTube by his abusers.  The court imposed suspended three- to six-month sentences on three of the executives charged, acquitting them of defamation along with another executive facing only the defamation charge.  Google, which said it plans to appeal, called the result “astonishing.”  One of the convicted defendants–who is Google’s global privacy counsel–said “[t]he judge has decided I’m primarily responsible for the actions of some teenagers who uploaded a reprehensible video to Google video.” Google’s senior vice president and chief legal officer and its chief financial officer were also convicted.  The Wall Street Journal article stated “[t]he trial could help define whether the Internet in Italy is an open, self-regulating platform or if content must be better monitored for abusive material.”

U.S. law, specifically Section 230 of the Communications Decency Act, would shield Google from liability because the actionable video was created and posted online by a third party. To put it in the language of Section 230,  Google would not be liable because it was not the video’s information content provider; it was not “responsible, in whole or in part, for the creation or development of” the video.  U.S. law recognizes the impracticability–or impossibility–of screening tens of thousands of posts and other items created by Internet users.  This case, and the French case discussed in the prior post, show how far the Internet has come from that described in John Perry Barlow’s Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind . . .  You have no sovereignty where we gather . . . I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Or not.

The Constant Eye of the Internet

I received an email today about the situation in Burma that raises interesting issues about the impact of the Internet on the political situation in Burma:

[O]ne f the most interesting parts of the ongoing story is the speculation that the urmese ruling junta will be forced to speak much more openly than they did back in 1988 because of the “YouTube effect.” The theory is that in 1988, the world didn’t know about the atrocities committed until months later, diluting the response that may have occurred otherwise. Today, though, with videos of the attacks against the monks all over the Internet, a more worldwide response happened much more quickly (especially in Japan with video of the pointblank shooting of a Japanese photographer). Right now, General Thwe is hinting he may be willing to negotiate after all with the “rightful” democratic authority figure under house arrest and a theme is how much the Internet played into the worldwide response, practically forcing the General to confront the issue immediately.

I’ve blogged before about the “YouTube-ification” of politics in the U.S., which tends to involve the “gotcha” game of catching politicians in unguarded moments. What this describes is more profound, like the cleansing effect of sunlight.

UF Taser Incident

A number of people have sent links (here is one) to YouTube videos of the Tasering incident during John Kerry’s speech at University of Florida. Viewing it on these videos it seems the police may have overreacted in subduing the young man, but it is very hard to see what is going on. The victim was more interested in making a scene than in having Kerry answer any of his questions, which of course is not a reason to hit him with the Taser. As he is escorted from the hall more officers get involved in subduing him and they use the Taser while he is on the ground. In the first video I watched the Taser is neither seen nor heard but the video linked above provides clear audio evidence of the Taser. The incident bears some resemblance to last November’s Tasering incident at a UCLA library. To my viewing the UCLA incident, in which campus police repeatedly used a Taser on a young man who was leaving the library after and ID check, is more disturbing. The UCLA student was complying with police directives, while this UF student was struggling with police removing him from a hall for disrupting Kerry’s appearance. Kerry’s ghostly voice-over is strangely passive throughout. Again, I’m not agreeing that the student deserved to be Tasered for the disruption. Police may have been warranted in removing him from the hall–I haven’t looked into the circumstances of Kerry’s speech and the student’s presence there–and if so, they can use appropriate force to do so.

Faux Ingenue

What a juxtaposition. The topic today in Internet law is The Way it Was, a look back at that techno-utopian era when people gushed about how the Internet was borderless, outside the reach of and even incomprehensible to sovereign nations, and the vehicle for a “civilization of the Mind” in the words of John Perry Barlow. Such quaint continues to influence discussions of Internet governance and wild, untamed corners of cyberspace still exist but the mainstream Internet–an incomprehensible pairing of words a decade ago–can be readily coopted in ways that make old-timers weep.

A case in point is exposed in a today’s Wall Street Journal article titled Download This: YouTube Phenom Has a Big Secret (subscription required). The phenom is Marie Digby, “[a] 24-year old singer and guitarist . . . hailed as proof that the Internet is transforming the world of entertainment.” The Journal reports that while Digby presents herself as a simple girl who posted on YouTube home-made videos of herself playing the guitar and singing in her bedroom–videos that have been viewed more than 2.3 million times–“Hollywood Records signed Ms. Digby in 2005, 18 months before she became a YouTube phenomenon. Hollywood Records helped devise her Internet strategy, consulted with her on the type of songs she chose to post, and distributed a high-quality studio recording . . . to iTunes and radio stations.” According to the article Digby has “feign[ed] amateur status” with misleading blog postings on her MySpace page and comments in public appearances that belie her backing by a record label. The article contains this telling statement: “Ms. Digby says she doesn’t mention her record label on her Web sites because ‘I didn’t feel like it was something that was going to make people like me.'” That’s true. It’s hard to market a product with an unpleasant aftertaste.

The more things change . . .

E-Commerce Top Ten

The Software Information and Industry Association (SIIA) announced the Ten Most Significant eCommerce Developments of the Past Decade. They are:

  1. Google (Sept. 1998)
  2. Broadband Penetration of US Internet Users Reaches 50% (June 2004)
  3. eBay Auctions (Launched Sept. 1997)
  4. Amazon.com (IPO May 1997)
  5. Google Ad Words (2000)
  6. Open Standards (HTML 4.0 released – 1997)
  7. Wi-Fi (802.11 launched – 1997)
  8. User-Generated Content (YouTube 2005)
  9. iTunes (2001)
  10. BlackBerry (1999)

I’ve used, utilized, or relied on all in the past month, so I can’t argue much with the list. (At first glance I omitted Blackberry from this statement until I remembered that Randy did Google searches on his Blackberry to settle disputes during the bike trip.) What I’d like to see at #11: standardized spelling for eCommerce e-Commerce E-Commerce.

The 59th Street (Toll)Bridge Song

In the spring of 1967 Jimi Hendrix released Are You Experienced?, his first album, and The Beatles released Sgt. Pepper’s Lonely Hearts Club Band. My friend Rick bought Sgt. Pepper as soon as it was available and, incredibly excited by what he heard, called and played it for me over the telephone. I first heard “With a Little Help From My Friends”, “She’s Leaving Home,” and “A Day in the Life” on a spring afternoon while standing in my kitchen with a bakelite phone receiver pressed to my right ear. My first listening of Are You Experienced? came courtesy of another friend, who played it one Friday evening at full volume in his darkened bedroom. My hair stood on end at the opening chords of “Purple Haze.” I had never before heard music like that.

We experience music more immediately, more personally than any other form of popular culture. Movies and television required (until video-capable iPods and $1.99 episodes of Lost and The Office) that we sit and watch a screen. In my lifetime music has always been portable, first through car radios (my high-school car, a 1965 Plymouth Fury, had only AM radio which means I heard Mungo Jerry’s “In the Summertime” about 1,000 times in 1970 alone), then through the Sony Walkman and its progeny, which led to today’s ubiquitous MP3 players. Technology has allowed us to accompany our lives with a personal soundtrack. We all have music that is ours. 1967 was also the year of The Graduate,plastics,” and the birth of Dustin Hoffman’s career. I recall Dick Cavett asking Hoffman whether sudden fame had changed his life. Hoffman replied “It’s not like Mrs. Robinson plays when I go to the bathroom in the morning.” These days we can all have Mrs. Robinson–the Simon and Garfunkel original or the Lemonhead’s version–playing when we go to the bathroom in the morning.*

I’m thinking about this because of recent exposure to the inevitable boomer-retrospective articles and radio shows about the Summer of Love and the juxtaposition of two articles: Jason Fry’s “The Perils of Online Song Lyrics” in the 5/21 Wall Street Journal (subtitled “Yahoo’s New Lyrics Service Is Promising,But Why Can’t I Copy and Paste the Words?”) and Mark Helprin’s “A Great Idea Lives Forever. Shouldn’t Its Copyright?,” an op-ed piece in the 5/20 New York Times. Helprin argues that copyright law should protect creative works to the same extent that law generally protects rights in personal and real property. Congress can, Helprin asserts, circumvent (my word, not his) the Constitutional provision authorizing Congress to extend a monopoly to authors “for limited times,” by vitiating the meaning of “for limited times:” “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” Helprin is a far-more skilled and practiced polemicist than me, but to my simple mind this expression of his argument falls off the rails before it leaves the station. In its entirety Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress’s power to enact copyright law must serve the purpose of promoting the progress of useful arts. This argument (in Eldred v Ashcroft) failed to convince the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act, which extended the term to the life of the author plus 70 years, but the Eldred decision does not support the position that Congress can extend the term of copyright at will. Larry Lessig is articulating a more complete and scholarly refutation of Helprin’s argument.

The article about the Yahoo lyrics site explores the confluence of our appropriation of popular music for personal expression and the “propertization” of copyright. As Fry states “[s]ong lyrics are one of those things the Internet might have been made for . . .” Most of use have searched for song lyrics. The Archive of Misheard Lyrics at www.kissthisguy.com is a favorite site. Song lyrics are part of our aural wallpaper, a cultural touchstone, a form of shorthand, titles for the chapters of our lives (I’m in one titled “well . . . how did I get here?“), the raw material for wedding vows, and memory triggers. We hear a phrase in conversation that reminds us of a lyric that transports us to the time in our life associated with that song. (If reading that made you think of Patrick Swayze and Jennifer Grey, good.) Song lyrics are all that but, at the request of copyright holders, you can’t copy and paste lyrics from Yahoo!’s lyric site. According to Nicholas Firth, Chairman and CEO of BMG Music, Inc., a copied lyric is a lost sale–an idiotic comment that ignores the reality in which most of us live. If the choice is between paying a licensing fee to copy a lyric into a blog post and going without I’ll go without. Most people would say the same, even people old enough to remember Mungo Jerry’s “In the Summertime” who did not grow up with file-sharing. I won’t pay the copyright holder a trespassing fee to walk in my own memories.

* It must have been kismet that caused iTunes shuffle to play the S&G version of Mrs. Robinson as I was writing this paragraph.

PS: A student sent me the link to this video a few days ago. Titled “A Fair(y) Use Tale” it summarizes principles of copyright law using clips from Disney animations. Cute, obsessive, and worth a look, if just to wonder: how long did it take to put this together?

In the home stretch

I have a few more papers to grade and I wrap up exams next Friday. Until I can finally crawl out from this pile of paper, here are two random-yet-fascinating diversions:

Why is this day different from all other days: Tony Blair, Willie Mays, Sigmund Freud, and Orson Welles were all born today, May 6, plus Roger Bannister broke the 4-minute mile barrier on this day in 1954.

Telecomedy, or The Limits of Antitrust: Stephen Colbert explains the history of AT&T. (Thanks, RZ)

Authenticity Matters

Having made fun of John Edwards’ vanity once I have to comment on his $400 haircuts. When in the 2004 campaign a Bush aid calls you the “Breck Girl of politics,” when you are the subject of a video posted on YouTube that shows you fussing with your hair for two minutes to the tune of “I Feel Pretty,” and when “two Americas,” the divide between rich and poor, has been your campaign theme, then paying $400 for a Beverly Hills haircut is, to be charitable, tone deaf and stupid. It reeks of Kerry-esque inauthenticity.

It is a mistake if democrats (e.g., this Huffington Post entry) belittle this story as another substance-less right-wing Fox-inspired character assassination. Democratic candidates need to offer something beyond “I’m not George Bush.” Running smart campaigns would be a good place to start.

The first thing we do, let’s prank all the lawyers*

Can Coca-Cola sue Coke Zero for taste infringement? That’s the premise of Coke Zero’s ad campaign, in which Coca-Cola hired actors, posing as company managers, to meet with Coke lawyers and discuss the taste infringement lawsuit. The meetings were filmed secretly. The trick is that the lawyers did not know they were being set up, and reacted to the possible lawsuit like lawyers. Coca-Cola released the resulting videos on, where else, YouTube. As a lawyer and teacher who has fielded his share of outlandish questions about lawsuits, I think the videos are very funny.

Thanks, AS.

*With apologies to Shakespeare, Henvry VI, Act IV, Scene II