Fair Use Ruling Could Boost Computer Vision

This post originally appeared on Smart Content News.

This week’s landmark copyright ruling in the “Dancing Baby” video case was a set-back for the studios and record companies in their efforts to police the use of their works on YouTube and other  user-generated content platforms. But it could prove a boon to the fields of computer vision and computer learning.

Let s Go Crazy   1   YouTubeIn a 26-page opinion, the federal Ninth Circuit Court of Appeals ruled for the first time that copyright owners are required to consider fair use before sending a take-down notice demanding that an allegedly infringing video be removed from a website. The lawsuit stemmed from a 29-second video posted to YouTube by Stephanie Lenz showing her toddler “dancing” in the family kitchen as the Prince song “Let’s Go Crazy” played in the background.

Universal Music sent a take-down notice to the website claiming the use of Prince’s music in the video was not authorized. Read More »

Turning Talking Heads

With apologies to LBJ, but when you’ve lost David Byrne, you’re losing the argument over whom to blame for music artists’ meager share of the streaming pot.

Two years ago, the former Talking Heads front man came out as the scourge of Spotify, casting the streaming service in an op-ed that ran in the Guardian, as a sort of malevolent force that was destroying all that was good and holy about the music business:

There are a number of ways to stream music online: Pandora is like a radio station that plays stuff you like but doesn’t take requests; YouTube plays talking_heads_album individual songs that folks and corporations have uploaded and Spotify is a music library that plays whatever you want (if they have it), whenever you want it. Some of these services only work when you’re online, but some, like Spotify, allow you to download your playlist songs and carry them around. For many music listeners, the choice is obvious – why would you ever buy a CD or pay for a download when you can stream your favourite albums and artists either for free, or for a nominal monthly charge?…

The amounts these services pay per stream is miniscule – their idea being that if enough people use the service those tiny grains of sand will pile up. Domination and ubiquity are therefore to be encouraged. We should readjust our values because in the web-based world we are told that monopoly is good for us….In future, if artists have to rely almost exclusively on the income from these services, they’ll be out of work within a year.

Other artists, like Dave Lowry of Cracker, joined the sad chorus. But in an op-ed published in the New York Times on Sunday, Byrne struck a very different tone regarding streaming, even managing a (somewhat begrudging) compliment for Spotify for trying to illuminate the industry’s opaque payment system: Read More »

OTT Retransmission: The Next Net Neutrality

Come the fall, the Federal Communications Commssion’s consideration of its proposal to reclassify some over-the-top video services as multichannel video programming providers (MVPDs) is likely to become the agency’s next highly divisive issue, reprising the same ideological and partisan differences that marked the debate over net neutrality.

Last month, FCC chairman Tom Wheeler confirmed that the commission will take up the proposal in the fall, and indicated that he favored making the switch, which would grant online video distributors (OVDs) the same program access rights as cable and satellite providers while also imposing some of the same restrictions and FCC sealrequirements. But in a speech to the Churchill Club in Palo Alto, Calif., last week, Republican commissioner Ajit Pai, who had dissented at great length from the FCC’s net neutrality rules, laid down the gauntlet again.

“This morning, I would like to make clear that I strongly oppose this proposal,” Pai said. “Given the remarkable success of the over-the-top video industry, the burden should be on those who favor new regulations to prove what’s wrong and explain why we should change. That case just hasn’t been made.”

As with his opposition to net neutrality rules, Pai’s analysis of OVD reclassification leans heavily on standard conservative “free market: good; regulation: bad” framing. Beyond the boilerplate, though, he raises an issue that I also noted in a previous post here on OVD reclassification: Changing the FCC’s definition of who qualifies as a MVPD, by itself, will not guarantee OVDs will be able to retransmit broadcast signals on the same terms as cable and satellite providers because the FCC has no authority to convey a license to the copyrighted programming contained in those signals. Traditional cable TV systems operate under a compulsory license, created by Congress and administered by the U.S. Copyright Office, that gives them automatic permission to rebroadcast copyrighted programming in exchange for paying statutory royalties. Read More »

Slippery SOPA

Copyright Critics of the failed Stop Online Piracy Act and the Protect IP Act (SOPA/PIPA) have been having some fun with some internal RIAA and IFPI materials regarding the music industry’s anti-piracy efforts that leaked to TorrentFreak last week. Part of the cache includes a PowerPoint presentation delivered by RIAA deputy general counsel Victoria Sheckler to IFPI members back in April (pdf).

The critics are taking particular delight in Sheckler’s acknowledgment that the laws were “not likely to have been effective tool[s] for music.” Here’s the PPT slide summarizing the SOPA/PIPA debate:

While perhaps a bit embarrassing for the RIAA, I don’t find the revelation terribly surprising. The bills weren’t really crafted with music in mind; most of the online piracy the music industry is concerned about occurs over peer-to-peer networks, which were not the targets of the bills.

Rather, the bills were crafted by the MPAA, as a tool against movie piracy. Though P2P networks are responsible for a certain amount of movie piracy, more of it these days involves digital locker services, mostly based outside the U.S., like Megaupload, which were the main targets of SOPA and PIPA. As data contained elsewhere in Sheckler’s presentation show, digital lockers make up only about 6 percent of what the music companies regard as piracy, compared to 23 percent Read More »

YouTube Court: Viacom Dios

The lesson for content owners from yesterday’s smackdown of Viacom by U.S. District Court Judge Louis Stanton in its lawsuit against YouTube/Google should be clear (which, of course, is no guarantee it will be): stop bringing DMCA  safe-harbor suits against online service providers. It’s not working, and it’s past time to get on with plan B.

The Viacom case can now be added to a string of cases –beginning with Perfect 10 v. CCBill in 2007 and including Io Group v. Veoh (2008), and UMG v. Veoh (2009) — in which courts have refused to impose liability or additional procedural requirements on service providers beyond the strict language of the § 512 (c) safe-harbor provisions. Though The Media Wonk is not a lawyer, it sure seems like there’s a pattern developing here, and it’s not a favorable one for the content industries.

Unlike Grokster and LimeWire, which, as Judge Stanton noted in yesterday’s opinion, involved peer-to-peer file-sharing networks that are nowhere addressed in the DMCA, Veoh and YouTube are precisely the sort of web hosting services Congress envisioned and intended to protect from liability in drafting the DMCA, as Stanton also noted. He went to great length, in fact,  to emphasize the point, giving over whole pages in his opinion to long excerpts from the 1998 House and Senate committee reports on the law detailing exactly how Congress intended the language in § 512 of the statute to be construed by courts. The only real question was whether the standard industry practices YouTube followed regarding notice-and-takedown and the handling of repeat infringers meet the procedural requirements spelled out in the statute to qualify for safe-harbor protection. Like the Veoh courts before him, Stanton said they do.

Not surprisingly, Viacom didn’t see it that way. In a statement issued after the decision was handed down it seemed to suggest that it has YouTube just where it wants ’em:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions.   We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.  After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.

The best case scenario for Viacom would obviously be a win in the Second Circuit, which carries a lot of weight in judicial circles on copyright matters. That might create enough of a split with the Ninth Circuit, which handed down the Perfect 10 case and where both Veoh courts are located, to tempt the Supreme Court to take up the issue at some point and give content owners a favorable ruling.

I can’t speak definitively to the legal likelihood of that scenario actually playing out. But again, to a layperson it seems like a long shot. Four courts have now pointedly refused to impose liability or new procedural requirements on service providers beyond the strict language in the statute, and zero courts have agreed to.

It’s possible, of course, that things could go differently in the Second Circuit, and the court (or the Supreme Court) will create a new legal standard in which a general awareness that unfettered copyright infringement is occurring on a platform is sufficient to disqualify a service provider from the § 512 safe harbor.

My question is: how much would that actually help Viacom? What sort of remedy, apart from monetary damages, would the court impose? It’s not going to erase the safe harbor language from the statute, so the principle of limited liability for service providers would remain. The best case for Viacom would be if the court were to create some new procedural requirements for service providers to qualify for the safe harbor, such as mandatory filtering. That would give Viacom and other content owners far more leverage in negotiating with service providers over the use of their content.

Since filtering is nowhere mentioned in the statute, however, that seems like a heavy lift for the court. If content owners really want mandatory filtering, I think they’re going to have to go to Congress.

That would mean reopening the DMCA, however, which means opening a gigantic can of worms from which all sorts of unpredictable outcomes could crawl. In the meantime, deals with YouTube and other online service providers that could profit Viacom, however imperfectly, are not getting cut.

It’s possible that, some day, Viacom will get a better deal out of the courts, if not from the YouTube case than from some other. But hoping for a three-way bank-shot is not much of a business plan.

Digital Britain and the return of the Stationer's Company

Last week marked the 300th anniversary of the Statute of Anne, the first true modern copyright law in the West, which was passed by the British Parliament in 1710. It established a copyright term of 14 years and, for the first time, brought the author on stage as the party in whom the right was vested, rather than the bookseller/printer who had dominated the trade both legally and commercially since Gutenberg’s time. The statute also made the term renewable for another 14 years if the author were still alive at the expiration of the initial period.

Last week also occasioned the passage in England of the Digital Economy Bill, which, for the first time, made ISPs legally liable for the actions of their subscribers and imposed on them an affirmative obligation to protect copyrights to which they are not party. The timing of the passage was surely a coincidence. It’s unlikely many in Parliament were aware of date’s significance.  But it presented a striking juxtaposition nonetheless.

Prior to 1710, the book and printing trade in Britain (they were one in the same) was controlled by the Stationer’s Company of London, a royally chartered corporation with the power to enforce crown-sanctioned publishing monopolies (also called patents), regulate the import of books and see to it that no “seditious” or otherwise “objectionable” books or pamphlets were printed within the kingdom. Read More »

Seeing Red over copyright

Having failed to put forth a competitive consumer proposition to counter Redbox’s dollar-a-night DVD rentals, the studios are on the verge of accomplishing what, from the point of view of their own economic interests, is the next best thing: they have brought the rental kiosk operator to heel and effectively forced it to accept a 28-day window after street date before it begins loading their DVD releases into its ever-expanding red maw.

On Tuesday, Redbox and Warner Bros. announced an agreement to settle the litigation the kiosk company had brought against the studio last year. As part of the deal, Redbox agreed to a 28-day “vending” window and to limit sales of used Warner discs. In return, Warner will allow Redbox to acquire its releases at a lower cost and promised to “cooperate” with Redbox on possible future digital delivery ventures.

While Tuesday’s settlement applies only to Warner, it’s widely expected that similar deals are in the works with Twentieth Century-Fox and NBC Universal, which are involved in similar litigation with the Redbox. Assuming that happens, new releases will essentially disappear from Redbox kiosks.

Make no mistake. Redbox rentals were hurting DVD sales and undercutting the studios’ other revenue streams. Its dollar-a-night rentals accounted for roughly one of every five dollars consumers spent on DVDs last year, and it returned a far smaller share of that dollar to the studios than Wal-Mart sends them when it sells a DVD. And from the studios’ perspective, the trend lines were getting worse. Something had to be done. Read More »

Another strike against three-strikes?

More from the be careful what you wish for files: As The Media Wonk noted in a previous post, there is more to France’s three-strikes law than just three-strikes. One less-discussed provision is the strict regulation of movie release windows by the government, taking a key strategic decision out of the hands of the studios. One early victim of that provision appears to be Twentieth Century-Fox, which has scheduled the release of Avatar on Blu-ray and DVD in France for June 1–several months earlier than ordinary business considerations would dictate but necessary to comply with the law.

That provision isn’t the only booby-trap in the law for content owners, however.

The Creation and Internet law, after all, which went into effect on Jan. 1, wasn’t passed only to crack down on digital piracy. It was also intended to promote the legal availability of “multimedia” content on digital platforms. As it turned out, content owners probably should have paid more attention to that end of the deal.

In the spirit of promoting availability, France’s Minister of Culture, Frédéric Mitterrand, ordered up a commission to study and make recommendations on ways to facilitate availability. To head the commission, Mitterrand named Patrick Zelnik, CEO of Naive Records, which happens to be the label for which French First Lady and pop chanteuse Carla Bruni-Sarkozy records (that’s just the way they do things in France).

The Mission Zelnik, as the commission came to be known, issued its recommendations in early January, and they included a number of surprises. Topping the list was a proposal to implement a collective rights licensing scheme for music on digital linear platforms (i.e. webcasts), in effect a compulsory license. The commission also recommended a “voluntary” collective licensing scheme for non-linear platforms (downloads and on-demand streaming), with the stipulation that if the industry can’t come up with a satisfactory “voluntary” scheme within a year the government should mandate one. Read More »

'Avatar' blogging blues

My post the other day on the Blu-ray Disc release of Avatar in France generated quite a bit of traffic and commentary on other web sites (thank you Engadget HD), as well as attracting a few comments here. Alas, most of it has been critical.

While it’s always tempting to blame the critics for missing your point, as a general rule if a large number of people appear to have missed your point you probably didn’t do a very good job making it in the first place. So: mea culpa.

Let my try to clarify some issues:

Notwithstanding Ben from Engadget’s diligent research in IMDB, there really aren’t other movies comparable to Avatar. True, there have been other blockbusters in the past five years, most or all of which may have been released on DVD/Blu-ray within six months. But there haven’t been others with a $450 million negative cost and an inherently longer theatrical cume period due to the still-limited number of 3D screens. Read More »

For 'Avatar,' three-strikes means a quick out

From the be careful what you wish for file: Twentieth Century-Fox’s Avatar, which is rapidly approaching the top spot among all-time global box-office grosses, and would likely be the biggest selling Blu-ray title to date when released at Christmas time, will actually be released on June 1st, at least in most of the world. Amazon France is already taking pre-orders, for 28.99 euros.

Why not wait until the most propitious time of year to release such a monster title in order to maximize sales? Because it would be against the law in France to wait beyond June 1. And if you release it in France, under EU rules, you’ve effectively released it throughout the EU. And if you release it in the EU, you’ve effectively released it throughout Blu-ray’s Region B, which includes Africa and the Middle East as well as Australia and New Zealand, where they speak a version of English. And if you’re going to release a movie with an English soundtrack in Region B, you might as well release it in Region A, which includes the United States, because it’s going to end up on the Internet sooner or later, probably sooner.

Welcome to life under France’s new three-strikes regime.   Read More »

RealNetworks' real mistake

One week  after Judge Marilyn Hall Patel decisively threw out its antitrust claims against the studios and DVD CCA in the RealDVD case, RealNetworks appears to be imploding. On Wednesday COO John Giamatteo abruptly left the company, and on Thursday founder Rob Glaser stepped down as CEO (he’ll remain chairman). Although Glaser’s move had apparently been planned for some time, it came sooner than he expected and appears not to have been voluntary.

While it’s possible the timing of the events is just a coincidence I wouldn’t bet on it. Investors cheered the news of the Glaser move, sending the stock soaring 17 percent in its wake (ouch!), presumably in anticipation of a new strategic direction for the company–one not quite as provocative and confrontational with respect to the content owners.

The whole RealDVD saga, in fact, has been a disaster for Real. Not only has it been unable to distribute the product, thanks to a restraining order and temporary injunction by the court, but the litigation with the studios over the DVD copying software has produced an unending series of legal setbacks for Real, of which last week’s ruling is merely the latest. Read More »

The coming battle over used e-books (Updated)

On Thursday, Google announced during the Frankfurt Book Fair that its long-planned e-commerce platform for digital books will launch by June 2010. Christened Google Editions, represents a major departure from most current e-book offerings in that it won’t be confined to any particular reading device or desktop viewing application. Instead, Google will cache users’ purchases in a “cloud library,” which can be accessed from anywhere using any device with a Web browser

“It will be a browser-based access,” Google Books’  Tom Turvey said.  “The way the e-book market will evolve is by accessing the book from anywhere, from an access point of view and also from a geographical point of view.”

home-bookstoreUsers will be able to search for e-books on Google Editions (and presumably be served ads) and then buy them from Google, directly from the publisher or from one of dozens of partner retailers. Turvey said he expects the majority of Google Editions customers will go to retail partners, not to Google, to make purchases. “We are a wholesaler. A book distributor,” he said.

Given Google’s general bent toward moving content and applications off the desktop (or device) and into the cloud, turning e-books into Web apps is a logical strategy (GigaOm Pro subscribers can read my take on Google’s overall e-book strategy here). But it’s one that represents more than simply competition for Amazon’s Kindle. Google Editions is going to raise a host of new questions about the nature of an e-book.

For instance: How long before Google or one of its partner retailers sets up a used e-book exchange on the platform?

Up to now, used e-books have not really been an issue. Kindle books, for instance, remain locked to device they were acquired on. If you want to give a copy of a Kindle book to a friend, you have to hand over the whole Kindle. Other services let you transfer your e-books to a limited number of devices but unless you had the foresight to register your friend’s computer as an authorized device you’re out of luck. Selling the e-book to a stranger would be even more problematic.

The issue is not limited to e-books, of course. Any piece of DRM-protected content faces the same limitation. And it has long been a source of some controversy. Under the so-called first sale doctrine (Section 109 of the Copyright Act), the owner of a physical book is entitled to do whatever she wants with that particular copy — short of making another copy — including giving it as a gift, loaning it to a friend or re-selling it to a stranger. Ditto a CD, or a DVD. In principle, the same is true of any “lawfully made copy,” including digital copies. As a practical technical matter, however, sending a digital copy to a friend involves making another copy of the file, something the first sale doctrine does not permit.

For years now, we’ve simply lived with the inherent tension between the first sale doctrine and the practical realities of digital reproduction, in part because its main commercial implications were largely limited to business–online resellers like iTunes, Amazon or CinemaNow–which could be manage-ably licensed by content owners. Individual consumers bent on sharing their digital files had plenty of unauthorized file-sharing networks to turn to.

Google Editions works on a very different principle from Kindle or iTunes, however. Instead of transferring a copy of a file at the time of purchase, Google Editions will cache the  copy on a server, which is then accessed remotely. “Giving” a copy to friend, therefore, or even selling it to a stranger, does not need to involve a subsequent file transfer and its concomitant reproduction. All that would need to happen is for the seller’s access to the cached copy be disabled and the buyer’s accessed enabled at the time of the transaction.

I can see the issue arising first within a licensed context such as a “gift exchange.” Some Google Editions retailer will create a system allowing users to purchase e-books as a gift for someone else. The buyer (gift-giver) would be able to use her account to give a friend access to an e-book via the recipient’s account.

Publishers will love the idea at first because it will increase sales of e-books. But at some point, someone will hit on the idea of an independent re-sale exchange. Users who have purchased and finished with an e-book would be able to make it available to other buyers based on the same simultaneous disable/enable mechanism as the gift exchange.

used-bookstorePublishers will like that a lot less because prices on the exchange will be lower than the prices set by publishers for the same title (it wouldn’t work otherwise). Readers will be drawn to lower prices on the exchange because digital files don’t degrade from wear and tear the way physical copies do: “used” copies are just as good and fresh as “new” copies. Sellers will see it as a way to recapture a portion of the original purchase price, having first extracted value from the e-book by reading it.

Publishers, of course, will respond that your original e-book “purchase” was not in fact an actual purchase of a copy; it was the purchase of a license to use the e-book in certain ways and not others. The terms of service you agreed to by clicking “I agree” will preclude any sort of unauthorized re-sale.

We’ll then have a neatly framed question, suitable for litigation: If a transaction walks like a purchase and quacks like a purchase, is it a purchase even if the vendor insists otherwise? It won’t be the first time the issue has come up (see Vernor v. Autodesk, among others). But a case involving e-books is likely to capture the imagination of the public more than cases involving computer software (where most of the previous  litigation has occurred) because of our deep cultural history with trade in used, rare and antiquarian books.

I give it six to 12 after the launch of Google Editions.

Update: Looks like 6-12 months may be too long a timetable. According to the NYTimes, the new Barnes & Noble Nook, “will permit readers to lend their digital books to friends and download books wirelessly.”

Asking the wrong questions on e-books

The New York Times published a story the other day asking,Will Books be Napsterized? It’s conclusion? Probably, now that e-book readers are going mainstream and file-hosting sites like RapidShare are making it easier than ever for people to post pirated e-books online (speaking on a network filtering panel at the Future of Music Coaltion Policy Summit in Washington on Monday, Daniel Klein of London-based cyber-security firm Detica Group gave it 12 months before RapidShare becomes the new Public Enemy No. 1 among copyright owners).

napster-logoWhile the article, written by Randall Stross, professor of business at San Jose State University, is never explicit as to what it means to be “Napsterized,” it’s pretty clear it is referring to the loss of legitimate e-book sales–and perhaps even hardcover sales–due to people downloading for free illicit electronic editions of books rather than paying for the licensed product–much as the recorded music industry has suffered a sharp decline in CD sales since the advent of Napster and other peer-to-peer file-sharing networks.

“We are seeing lots of online piracy activities across all kinds of books — pretty much every category is turning up,” said Ed McCoyd, an executive director at the [Association of American Publishers]. “What happens when 20 to 30 percent of book readers use digital as the primary mode of reading books? Piracy’s a big concern.”

[snip]

We do know that people have been helping themselves to digital music without paying. When the music industry was “Napsterized” by free file-sharing, it suffered a blow from which it hasn’t recovered. Since music sales peaked in 1999, the value of the industry’s inflation-adjusted sales in the United States, even including sales from Apple’s highly successful iTunes Music Store, has dropped by more than half, according to the Recording Industry Association of America.

Read More »

More to chew on over breakfast

As I noted in my last post, The Media Wonk will be hosting the first Digital Breakfast DC panel discussion on Oct. 1 on the topic of Technology and IP Enforcement, including the role of the White House IP Enforcement Coordinator, a new position created by the PRO-IP Act last year. Today, President Barack Obama named former head of Intellectual Property and Innovation at the Office of the U.S. Trade Representative Victoria Espinel to be the first to fill the new post.

victorial-espinel2The nomination, who must be approved by the Senate, drew praise from both sides of the IP aisle. “Today’s appointment is the welcome culmination of many months of work toward a more streamlined approach to intellectual property enforcement by the federal government,” the Copyright Alliance said in a statement. “This appointment and its locale within the Office of Management and Budget is a strong sign by the Administration that it believes in the importance of creators’ rights and seeing those rights are enforced here and abroad.”

Public Interest group Public Knowledge, which is often at odds with the Copyright Alliance over IP issues, said in a statement, ““We congratulate Victoria Espinel on her nomination to be the Intellectual Property Enforcement Coordinator. She is well qualified for the position, having served as the assistant U.S. Trade Representative for Intellectual Property and Innovation. We look forward to working with her upon confirmation by the Senate. We believe she will be fair in her approach to intellectual property enforcement issues.”

Discussion the appointment at the breakfast will be panelistsRick Cotton, general counsel of NBC Universal, Prof. Peter Jaszi of Washington College of Law at American University, Jon Baumgarten, partner with Proskauer Rose, Bill Rosenblatt of GiantSteps Media and entertainment attorney Chris Castle, who represents music artists and songwriters.

Those interested in attending can register here.