Porn in the Closet: A Tribute to CPSC 183 – by “Jennifer S – YLT2012”

Say you wake up in the morning, after a hard night of partying, surrounded by empty bottles, your hungover girlfriend, and your laptop—with windows open to kiddie porn. How the hell did that get there? What the hell is wrong with you? And what legal conundrum will you find yourself in should the police discover your hoards of mysteriously downloaded child pornography? And if, by chance, you like making fannish vids of The Land Before Time set to Prince music, can you legally claim fair use? Yes.

This is the situation that our hero faces in our magnum opus, “Porn in the Closet,” a musical tribute to the great lyrical prodigy R. Kelly. Check out the original R. Kelly song here. “Porn in the Closet” is a scandalous synthesis of modern legal code and case law governing the legality of internet activity, privacy, and free speech in the United States today.

Allow us to explain the twisted tale of our “Porn in the Closet” protagonist. Poor P. Kelly (the “P” of course stands for “Porn”) wakes up to discover child pornography–for decency’s sake, here represented by Sesame Street characters with censored chests. Police officers who thermo-scanned the house, thinking P.Kelly had a marijuana growing operation, enter P. Kelly’s place with a warrant. Their warrant was unlawfully obtained, however, according to the 2001 Supreme Court Ruling in Kyllo v. United States, which found that thermo-scanning violates the Fourth Amendment’s protection against unlawful search and seizure. P. Kelly lets the officers in, and they discover the laptop full of kiddie porn hidden in the closet. The laptop was given away by the sound of a Skype call, which we may legally use in our video because this is created for educational purposes and is therefore not a copyright violation, but rather fair use!

While the officers, P. Kelly, and his girlfriend Polly ponder what do about the kiddie porn situation, two DMCA (Digital Millenium Copyright Act) Agents walk in. While DMCA agents typically issue take-down requests online, the artist formerly known as the Artist Formerly Known as Prince is particularly vengeful with protecting his music online. P. Kelly had created fannish vids, splicing footage from The Land Before Time movies with Prince songs. Thankfully, Judge Pierre Leval is on hand to clear up any confusion about transformative work and fair use. Judge Leval is in midget form, an homage to Chapter 9 of the original “Trapped in the Closet.” Our song is, of course, a parody and therefore fair use. Fannish vids are also, in fact, fair use, according to Section 107 of Title 17 of the U.S. Code.

Another knock comes on the door. P. Kelly questions what else he could have possibly done… Did they eat Roger Whitmore, the cannibalized cave explorer in The Speluncean Explorers? Did they hack into SendMail and create a virus, like the worm that wrought havoc in 1990, created by bored college student Robert Tappan Morris? No, we will never know what other internet crimes or gaffes P. Kelly has committed, because our favorite deus ex machina saves the day. Brad Rosen, in all of his glory, brings our tale to a close.
Follow along with our lyrics:
Seven o’clock in the morning
And the rays from the sun wakes me
I’m stretchin’ and yawnin’
My laptop is there right beside me
And I hear her retching from the bathroom
Then along comes Polly, she kisses me
And unsurprisingly she’s hungover, skank.

Now I’ve got this dumb look on my face
Like, what have we done?
How could I be so stupid to have downloaded all this kiddie porn?
Must have blacked out last night
Oh, what was on my mind?
Met on 4chan, took her home
Didn’t plan to sing this song
Knock on the door hearin, “Police, open up!”
My girlfag looks at me
Tells me to delete the kiddie porn
Keep trying to close windows
“Kiddie porn move out my way”
Police said “We have a warrant”
“Open up sometime today!”
“Shit think, shit think,  shit quick: put it in the closet.”

“Smelled weed last night,
Got a warrant to search your place.
Thermo-scanned your house,
Think you have a growing space.”
“Grow weed? What, we don’t do that.
That was just my tanning bed.”

You’re not gonna believe it, but things get deeper as the story goes on
Next thing you know they hear my laptop with the kiddie porn

“This is child pornography
We’re going to have to take you in”
“Whoa, this isn’t our kiddie porn
Someone else must have put that there.
We’re not into that
We only watch porn between legally-consenting, and unionized disease-free adults”

I’m telling you now, I wish this was the worst part of my day
But then another knock
In walks an agent of the DMCA
We’re by the closet, like man, what the fuck is happenin’?
“We have a takedown request”
From the artist formerly known as Prince
Is this about my fannish vids?  Those were transformative
Land Before Time needed a bit of Prince
Fair use from section 107 of Title 17 of the US Code
A midget said, “Vidding is fair use.”
“Oh I didn’t watch it”
And I’m like, “God it’s Judge Pierre Leval from the second circuit!”

“Why is he a midget?”
“We needed a midget.”
She says, “Baby, we’re in deep shit.”
Another knock on the door.
We stop, all look at each other
Like, Who the hell is that
We say, “What else did we do?”
We need a jailbreak IRL
Did we eat Roger Whitmore?
Did we hack into mail?
The knocking gets louder
I pull out my Baretta
They pull out their Tasers
Said “Don’t tase me bro!”
Midget opens the door
I can’t believe it’s Brad Rosen…

Final Project: Stop SOPA at Yale – by “Mollie D”

    

 

       Our project was to plan and implement an advocacy and awareness campaign concerning the Stop Online Piracy Act. This piece of legislation, currently being debated in Congress, would place severe restrictions on Internet activities and free speech. The act also restricts Americans’ ability to obtain affordable prescription drugs from abroad. SOPA is the culmination of entertainment and pharmaceutical industry pressure on Washington to place stringent protections on intellectual property, and the resulting draconian measures threaten to undermine the fundamental principles of Internet freedom. The Internet has grown at such an astonishing rate because it has largely rejected harsh restrictions on user activity. SOPA violates the theoretical pillars necessary to the Internet’s functionality, and breaking the Internet in such a fashion would bear negative consequences for individuals and businesses that rely on the Internet’s facilitation of free information exchange.

       In formulating our project, we decided that a campaign aimed at students and tailored to their concerns would maximize the effectiveness of our efforts. We thus chose to use Internet and social media based methods of communication, and we concentrated our substantive content on issues most relevant to college students. We did not limit our coverage to these issues though, as we aimed to provide a breadth of information about the bill’s negative consequences. By using social media platforms, traditional media outlets, and two different blogging platforms, we were able to spread our message to many Yale students and provide valuable information about SOPA’s Internet-breaking policies to the campus. We hope the lasting impact of this campaign will not only be to facilitate continuing interest in SOPA’s progress, but also to engender a general sense of vigilance in the form of participatory democracy concerning free speech and Internet regulation that resonates well into the future.

Part 1: Launching a Campaign

       Our primary goal of this project was to spread awareness of SOPA and hopefully rally others around opposing it. In order to do this, we tried to appeal to many different groups by using a variety of platforms (Facebook, Twitter, WordPress). We also attempted to broaden our appeal by using satire and humor in addition to more pointed intellectual critique of the legislation. We tried to tap into the very things that SOPA would likely cut into: user-generated content, memes and places where you can share links. While we created a lot of our own content, we also tried to post relevant and interesting articles and sites that others had made. One particularly enjoyable and interesting story involved “The Megaupload Song” that received a takedown request, presumably automated, from some RIAA-related entity (Universal Music Group) because it featured many RIAA artists even though Megaupload (a major file-sharing site) owned all the rights to the video. If you’re curious, the (quite catchy) song can be found on Youtube, and there’s more information here. Also, if you’re into remixes, check out this link.

       A major challenge for our group in promoting the anti-SOPA movement was fighting the general Yale apathy and our generation’s apathy that comes with having people constantly inviting you to do things (spamming you). This challenge was exacerbated by finals period, and consequently, we weren’t able to get an Op-ed published in the YDN (as they stop publishing early in December). However, we were able to raise a good amount of awareness as many Yalies hadn’t even heard of SOPA prior to our outreach. Through explaining SOPA’s specific relevance to college students as well as posting some of the amazing articles and content available around the web, we were able to educate (and hopefully inspire) a lot of people.

       As of this writing, our Facebook page has 130 likes which is equivalent to about 3 percent of the Yale Undergraduate population.  While this number is fewer than we would have liked, we speculate that many people for political reasons and/or page like accumulation effects were reluctant to like our page. However, our Facebook page insights seem to indicate that many people still benefited from and engaged with our content. As we see below, our weekly total reach (the number of unique viewers who saw our content from 12/8/11 to 12/14/11) was 3,303 and peaked at 5,191 for the weak ending 12/12/11. Thus, a large percentage of Yale undergraduates likely read something we posted and learned more about SOPA.

 

       To complement our Facebook and WordPress, we created a Twitter account, @StopSopaYale, to complete our social media approach. The Twitter was useful in that it let us keep a small but interested group completely up to date on every #sopa happening. Additionally, the Twitter account was useful because it let us retweet other people’s views and comments on the SOPA debate. This allowed us to combine other people’s opinions with our own and give a lot of different viewpoints on the topic. The Twitter page was also an interesting foray into trending topics and extremely concise posts, a nice contrast to the more drawn out and in depth arguments of our WordPress blog.  Currently, we have 20 Twitter followers and we are on the list of one anti-SOPA advocate.

       In our opposition to SOPA we took both the pragmatic path into what specifically the SOPA legislation said and would do immediately (and why their is concern about intellectual property protection) as well as the somewhat hyperbolic path, wherein we demonstrated the absurdity of how broadly SOPA is written and speculated on the potential consequences that SOPA could have. In this way, we provided our audience both with a quick draw in (the two line memes and absurd scenarios depicted in videos) as well as further information if they were interested in understanding the issue on a deeper level.

Part 2: A Creative Approach

       In raising awareness within the Yale community about the flaws of SOPA, we aimed to create original content which would specifically appeal to Yale students, both in addressing issues relevant to our audience and by presenting this material in an entertaining form.  Thus, we created internet memes, videos, an op-ed for the Yale Daily News, and a blog.  Additionally, we wrote an anti-SOPA form letter for Yale students to send to their members of Congress which was tailored to reflect a Yale student’s perspective.  Finally, to make all of this content easier to access, we either linked the material to the Stop SOPA at Yale Facebook page or we created static HTML pages for the material with corresponding tabs to our Facebook page.

Internet Memes:

       The use of internet memes provided an effective and engaging way to point out the ridiculous elements of SOPA.  In generating our anti-SOPA memes, we drew from internet memes which were already popular and recognizable, such as the Lazy College Senior or Futurama Fry.  Thus, Yale students would be able to easily recognize the humor which we aimed to convey. Plus, internet memes can be easily shared and transformed.  Consequently, we hoped that our fans would not only share our anti-SOPA memes, but would also craft similar memes themselves.  Some topics which our memes addressed were the possible end to interactive websites such as Facebook and Wikipedia, the end to fair use online, and the halting of future innovative online start-ups.

Video Posts:

       Similar to the internet memes, the videos which we created aimed to point out insensible aspects of SOPA in a humorous way.  However, through videos we could portray these aspects in a more in-depth form to help our audience gain a better understanding of the problems created by SOPA.  For instance, the video entitled SOPA Courtroom Battle illustrates the extreme changes SOPA will make in criminalizing copyright infringement.

Form Letter:

       By creating an anti-SOPA form letter, we hoped to encourage students to be active participants in the Stop SOPA at Yale campaign, rather than just passive followers.  While creating awareness on campus about SOPA is important, it was equally important to us to inspire a response to the bill.  As mentioned above, we tailored the form letter to address the concerns of Yale students.  This form letter, with instructions on how to send it, was posted both on our Facebook page and our blog so that it could be easily accessed.

Op-Ed:

       As another form of outreach on campus, our group wrote an op-ed piece to be published in the Yale Daily News.  Unfortunately, it was too late in the semester for the op-ed to be published immediately, but it can currently be found on our blog and an updated version will be posted in the YDN early next semester.  Like our other creative content, the op-ed piece exemplifies many of the problems with SOPA and the article’s sarcastic, comical tone aims to keep our readers engaged and entertained.  Also, the op-ed piece directs our readers to visit our Facebook page, AmericanCensorship.org, and Wired for Change.

Blog:

       The Stop SOPA at Yale blog provides a forum for our group to express our opinions about SOPA extensively and provides a space for our followers to contribute their own viewpoints.  Similar to the op-ed, the blogs are written with the goal of being both informative and compelling.  Our blog posts touch on a variety of topics, ranging from the different camps of anti-SOPA supporters to the effect SOPA can have on healthcare.  In addition, three of our members held a live blog session to cover Congress’ markup debate of SOPA.  Through the blog, our group elevates our position in the anti-SOPA movement: not only do we provide a channel of information to Yale students, but we are also contributing to the online voices against SOPA.

Part 3: Becoming a Part of the Action

       One of the more interactive aspects that we integrated into Stop SOPA at Yale was our creation and operation of a live blog. After learning that there would be Congressional debate held to discuss the SOPA legislation on Thursday, December 15 (which just so happened to fall in the middle of our SOPA campaign), we realized it presented a great opportunity to add very direct and significant value to our campaign efforts. We would have been foolish not to somehow take advantage of the fortuitous timing of the most defining event to take place regarding SOPA to date. Sooo, we decided to conduct a continuous live blog during the House of Representatives’ Full Committee Markup. For the sake of clarification or if you are not really sure what a markup is, it is “The process by which congressional committees and subcommittees debate, amend, and rewrite proposed legislation.”

       Up to that point, the majority of our campaign’s content was based upon content published online, in the news, by political commentators, activists, etc. We had yet to really dig deep into the real diplomatic activity and reality of what was actually happening with SOPA on Capitol Hill, or among the politicians who will ultimately dictate the bill’s fate. We knew that by monitoring and providing commentary on the live debate IN CONGRESS, it would add a heightened level of authentic value to our campaign.

The very nature and benefits of maintaining a live blog carried unique advantages that fundamentally differed from the other aspects of our campaign (Facebook page, normal blog, memes, creative scenes, op-ed, etc)….

       Live blogging gave us a channel to portray not only our opinions about SOPA and why people should take a stand against it, but also the ability to present a discussion based on the statements made by representatives in Congress to support our previously published content. Furthermore, as proactive “Anti-SOPAs,” conducting this event forced us to seriously pay attention to what is ACTUALLY going on with SOPA in the political sphere. When participating in a public protest, it is very easy to get caught up in the overwhelming flood of public opinion online and in the media. Blogging live on the congressional hearing during which political figures delivered their positions helped us stay grounded.

       The main goal of our campaign was to engage Yale students in a compelling way. We believed that a live blog would be (relatively) more captivating (to the extent that a live blog really can be) than other forms of content. Our idea was that a live blog on the Congressional markup would attract more attention to the issues we were trying to convey to the student body. We also realized this would make the substance of the debate more accessible. Essentially, we sought to accomplish two campaign goals: 1) more exposure for our campaign, 2) heightened attention and knowledge to students about the bill itself.

       We believe we were able to bring the experience of the House debate in an appealing way to those who may not have followed it live, but wanted to have a taste of what went on. The live blog was an aspect of our campaign that probably linked closest with the “real-life” implications surrounding SOPA. The most fitting conclusion I could provide about this endeavor would be – POLITICAL PARTICIPATION AT ITS FINEST!

Part 4: A Rewarding Experience

       Ultimately, we deemed our advocacy campaign a success. As is discussed above, our data shows that our Facebook page reached a large number of individuals, both those inside and out of the Yale community.  We believe that we helped further the anti-SOPA cause and exposed the weak points of the legislation. It was especially exciting to be involved with the anti-SOPA activity at this particular stage, when the bill is one of its most hotly debated points. This allowed us to piggyback off of other anti-SOPA campaigns’ publicity and allowed us to run a live-blog of the bill’s mark-up in Congress.

       It was an extremely rewarding experience for us all, both in terms of educating others about the dangers of SOPA and learning ourselves about the controversial bill, as well as about other related debates regarding the freedom of the Internet. The project also allowed us to gather (or hone) many different skills using technology that we might have never been exposed to, including creating and running a blog (and live blog), creating memes and other internet videos, writing simple HTML, and using and linking Twitter, Facebook, and blog pages. The project was therefore a perfect culmination of our semester in Introduction to Law and Technology, reinforcing and combining new technological skills with knowledge about current Internet debates that in the future will allow us to be better informed and more active citizens of the Internet world.

Mollie DiBrell
Charles Gyer
Sam Helfaer
Nicholas Makarov
Zachary Tobolowsky
Will Kirkland

Defame Monster – by “Jake E”

Defamation

Situation: someone, anonymously, begins posting things about you on the Internet. Bad things, things that make you look like a scumbag. None of it is true, of course, but when a potential employer Googles you or grandma learns how to use Spokeo (tagline: “Not your grandma’s white pages.”) or one of the other dozens of data aggregators, you could be in very real, very big trouble, for something you didn’t do.

What can you do? Well, obviously, your first concern is getting the website to take down the material. So you should just talk to the website, right? Unfortunately, it’s not always that simple.

It’s true that many websites have mechanisms built in for reporting defamation. YouTube allows users to “flag” things like videos containing hate speech and user harassment. Facebook has similar flagging capabilities for hate speech and bullying. But what actually happens when you use these mechanisms to report your defamation?

Before we dive into this, let’s look at the legal basis for all of this.

The Law

What is defamation? The Restatement (Second) of Torts, § 559 defines defamatory communication like so: “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the stimation of the community or to deter third persons from associating or dealing with him.” Simple enough.

But how is liability for defamation determined? § 558 of this Restatement states:

To create liability for defamation there must be:

  1. a false and defamatory statement concerning another;
  2. an unprivileged publication to a third party;
  3. fault amounting at least to negligence on the part of the publisher [with respect to the act of publication]; and
  4. either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication

Okay, well that seems fair. I can haz lawsuit now?

Not so fast. The Communications Decency Act (CDA) of 1996 adds a twist, with § 230 (c), which says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” What does that mean?

Traditionally, publishers are held liable for content they publish—they have a responsibility to make sure nothing in it is defamatory, among other things. Distributors, on the other hand, are held to a much lesser standard of liability because they’re merely “passive conduits” as Jonathan Zittrain calls them, though some liability is still maintained. CDA § 230 (c) thereby says that no service provider (here: website) can be treated as either the publisher or original writer of content that someone else posted on that site. This is to encourage websites to screen themselves for content without suddenly jumping from weak distributor liability to strong publisher liability—thus, websites can filter their own user-submitted content without fearing if they miss something they’ll have a lawsuit on their hands. This in turn encourages free speech on the Internet, because if instead sites had to filter all potentially objectionable content, everything would be heavily censored. (The reason filtering of any sort is encouraged by Congress is the fear that a lack of filtering will lead to children stumbling upon pornography.)

So a website can’t be held to publisher liability standards for things its users post. But it still must adhere to weak distributor liability standards, right? Well, no. In Zeran v. America Online, Inc. it was found that the failure to mention distributors in § 230 (c) was a Congressional oversight and, in fact, such a website can’t be held liable even as a distributor. Something posted is entirely the poster’s fault.

So if you’ve been defamed, you can at least go after the person who’s been spreading lies about you on message boards, right? Well, maybe not. Barrett v. Rosenthal expanded on the Zeran decision, noting in addition that because the CDA makes no distinction between an “active” and a “passive” user, anyone posting anything online isn’t liable for it so long as they’re not the original poster. (The court here notes that at some point a line will have to be more clearly defined for when reposting hits the level where it constitutes its own original act of content generation, but because of the case, “we need not consider when that line is crossed.” To date, it still has not been defined.)

So the person spreading lies about you isn’t liable as long as someone else said it first, and the websites on which all of these people are posting the lies can’t be held liable either. You can only sue the original poster for defamation, and that’s that.

But surely websites are cooperative if you’ve got a real claim that someone is defaming you? Well, perhaps. Before we answer this, let’s look at the other reason a user-generated-content website would have its content filtered or removed: copyright.

The DMCA

The Digital Millenium Copyright Act (DMCA) of 1998 paved the way for copyright holders, in particular music and movie distribution companies, to strongly protect their copyright claims, even in an age when the spreading of such files on the Internet has become commonplace. If YaleLawTech Records holds the copyright for “Don’t Mess with that CSS,” a popular song that they’ve found has been illegally used as a catchy background to a YouTube video, YLT Records simply has to send a takedown notice, specified in the DMCA, to YouTube. YouTube even has a standard webform to fill out if you don’t want to go to the effort to hire a lawyer.

When it receives such a takedown notice, it is in the best interests of YouTube (and similar sites) to simply remove the allegedly copyrighting content, without any examination into the validity of the copyright claim. By removing the video, YouTube becomes immune to all copyright infringement liability according to the DMCA, without which it would be facing thousands of copyright infringement suits. If on the other hand YouTube chooses not to remove the content immediately, even if such inaction is justified, YouTube would be inviting lawsuits and thus legal fees that it could live without.

In short, if a website receives a DMCA takedown notice, it’ll take down the questionable material immediately, no questions asked, without worrying whether or not the material was actually infringing upon a copyright and the takedown notice was actually valid.

Comparing Copyright to Defamation

So a website will take down allegedly copyrighted materials immediately because of the safe harbor the DMCA grants it for doing so. Shouldn’t it do the same for defamation? Unfortunately, because of the clear protections of the CDA, most websites have very little incentive to do so. If an item defames you, the website hosting it is immune from all defamation liability and as long as it’s not actually harming business to keep the material up (like hate speech might). So what do different websites actually do?

Facebook

Copyright Infringement

On filing DMCA takedown notices, Facebook says: “We will make every effort to review your report as quickly as we can. So long as everything appears to be in order, we will promptly remove or disable access to the content. We will also notify the user and, if requested, provide your report to the user. We will terminate repeat infringers when appropriate.”

Facebook has an automated DMCA form for filing DMCA takedown notices, and additionally lists the mailing address of its DMCA Designated Agent and has other info on its copyright help page.

Defamation

Facebook’s Terms of Use state: “You will not bully, intimidate, or harass any user.” How closely this ties to defamation is unclear. Further, if the person being defamed is not him/herself a Facebook user, the only part of the Terms that relates is: “You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory,” which is weak and indirect in this case.

To report “abuse” (violations of the Terms of Use), Facebook has a “Report _____” link below every image, message, video, event, etc. Nowhere does Facebook mention how long they will take to respond to reported content, and many times they state that “reporting … content doesn’t guarantee that they or it will be removed.”

YouTube

Copyright Infringement

YouTube is famous for its quick responses to DMCA takedown notices. It has, as mentioned above, a copyright complaint webform which can be filled out in less than a minute. For mass claims, YouTube created a Content Verification Program, whereby copyright holders (read: record labels) can submit an application verifying that they are a copyright holder (which implicitly acknowledges that the standard copyright complaint webform doesn’t really check for one’s identity) and then use YouTube’s “industry-leading Content Identification and Verification Tools.” These tools essentially let copyright holders have YouTube automatically scan videos for copyrighted content and then automatically either implements predetermined actions to monetize, record tracking data on, or block those videos infringing your copyrights. With this, copyright holders no longer even need to find or alert YouTube to copyrighted content, they can simply sit back and have search spiders make them money.

Defamation

YouTube’s Community Guidelines (themselves a section of the Terms of Service) says: “Things like … harassment … are taken very seriously. Anyone caught doing these things may be permanently banned from YouTube.” No timeframe, no standards, nothing.

YouTube, like Facebook, has a system of having users “flag” content as “inappropriate” and says only that its staff reviews flagged videos (no mention of comments, etc.) “24 hours a day, seven days a week.” Great.

MySpace

Copyright Infringement

MySpace seems to be behind the times in not having any automated webform for submitting DMCA takedown notices (their fastest method is by writing your own notice and emailing it to them). For further evidence that MySpace is behind the times, note that its second method of communication is “facsimile.” MySpace does not include a timeframe for how quickly they will respond to such notices.

Defamation

Harassment and cyberbullying are against MySpace’s Terms of Use, and such activities can be reported by using MySpace’s built-in all-purpose “Contact MySpace” form and including the offending user’s “friend ID” and a screenshot of the offending behavior. Just today, MySpace uploaded a new document in its help center on harassment, directing users to either block the harassing user or, if in danger, to call 911—no longer mentioning reporting this behavior to MySpace. MySpace says, “We promise to check it out and do our best to get back to you within 48 hours,” which is the closest thing to a timeframe any of these sites have stated.

Twitter

Copyright Infringement

Twitter also has an automated DMCA takedown notice webform. It also lists an email address that can be used for such complaints in the event the webform does not work. They don’t mention a timeframe for responses.

Defamation

Twitter only responds to serious, violent threats and violations of personal privacy, period. Everything else, you should just block. No mention of timeframes for Twitter responses.

Flickr

Copyright Infringement

Flickr has, surprisingly, no clear DMCA takedown notice procedures. Instead, it has a link to a page on filing DMCA notices with Yahoo!, which lists an mailing address, phone number, fax number, and email address (in that order) to contact. No mention of a timeframe for a response.

Defamation

Flickr uses Yahoo!’s Terms of Service, which only says users agree not to “‘stalk’ or otherwise harass another” as the closest thing to defamation. Flickr has a “report abuse” button to use for reporting this behavior, with no clear timeframe for a response.

Google+

Copyright Infringement

Having no real procedure for this (as it’s not really an issue yet), it seems DMCA notices must be sent directly to another Google address. Copyright isn’t mentioned anywhere in its User Content and Conduct Policy. Based on anecdotal evidence Google has removed offending content in six days, after at least something of a conversation with the complainant (no auto-removal systems in place).

Defamation

Google+ has “Report Abuse” links for what its User Content and Conduct Policy calls “violent or bullying behavior.” Libel, per se, isn’t mentioned. No idea of a timeframe for responses

Summary

As shown in the disparities between services’ treatment of DMCA takedown notices and claims of libel/defamation, websites are much more interested in protecting copyright claims, especially those of big companies, than in protecting the average person from libel. But we can’t blame these websites; their actions are a direct reaction to the differences in liability granted by the DMCA and the CDA. If we want to see change, this needs to be reflected in our laws. Should websites more strictly police alleged libel, or does that run the risk of encouraging censorship of free speech? Should websites put more effort into discerning the validity of copyright infringement claims, or does that disincentivize progress? However we stand, if we don’t agree with the system now we must reevaluate our legal policies because the implementations reflect the laws, and the laws are clear: copyright is protected at all costs from infringement, but not the reputation of the individual from defamation.

“Before He Tweets” – by “Stephanie R”

To the tune of Carrie Underwood’s “Before He Cheats”

Right now, he’s probl’y bloggin’ all my secrets to the world and they’re probl’y pretty nerdy
Right now, he’s probl’y telling some noob how to bring his offensive level up to thirty
Right now, he’s probl’y making an eHarmony account and hitting on a pedo,
And he don’t know…

Cause I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he Tweets

Right now, he’s probl’y retweetin’ with the hashtag #Ican’tbelievethatshepwnedme
Right now, he’s probl’y google searchin’ “Where can I find Mean Girls online for free”
Right now, he’s probl’y buying twenty dollars worth of those rare Pokemon…
And I mean, come on….

I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he Tweets

I might’ve saved a little trouble for his followers
Cause the next time that he Tweets
Oh you know it won’t be about me
Nooooo, not about me….

Cause I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he tweets
Maybe next time he’ll think before he tweets

 

Lyrics by Claire R and Alexander R

Artist + Record Label + YouTube + UGC + Promotion + Copyright Law = …Confusion? – by “Mark B”

On September 12, Lady Gaga picked up eight awards at the MTV Video Music Awards in Los Angeles.  She is arguably the first real superstar musician of the digital age.  She continues to tour relentlessly, capitalizing on the tremendous wave of commercial success that she is riding and, in doing so, is working hard to ensure her continued ubiquity.

Her acceptance speech for the ‘Best Female Video’ award was, typically ludicrous costume aside, especially notable for one line in particular.  After thanking various parties for their assistance and support in producing the video, she makes a point of paying special tribute to “all the gays for remaking this video over and over again”:

MTV VMAs 2010 – Lady Gaga Best Female Video Acceptance Speech

Of course, it’s not just “the gays” who have provided a take on the song in question.   A simple search for the phrase ‘Bad Romance’ on YouTube returns a veritable slurry of user-generated content uploads from an intriguing blend of celebrities (Joseph Gordon-Levitt), other bands (30 Seconds To Mars), acapella groups, aspiring singer songwriters, the kids from the TV show “Glee” and various groups of individuals of all shapes and sizes parodying or paying tribute to (depending on your interpretation) her version of the song.

Harmless, right?  Well, it essentially depends on your interpretation of “fair use”.  The question of whether or not each of these unauthorized video posts that are now all over the internet constitutes a breach of copyright protection is the subject of a degree of legal ambiguity.  Amongst the considerations for determining what constitutes “fair use” listed under the Copyright Act is a clause that allows consideration for the “effect of the use upon the potential market for or value of the copyrighted work.”  This is a somewhat subjective measure of determination.

Having worked for two major record labels, with a number of recording artists and a corporate law firm to date, I can just imagine the mixed reactions that each party might have had to Lady Gaga’s expression of thanks to those who have remade her song and shared it on the Internet.  Some will see it as a straightforward breach of copyright (artist or record company owns copyright, user makes public his own version of the song without permission from the copyright owner thus breaching copyright) but taking legal action against such users might come at the expense of a degree of promotion for the song in question.  After all, the viral nature of such videos undoubtedly adds to the aforementioned ubiquity that such artists as Lady Gaga enjoy in the digital age.

How then do you reasonably draw a distinction between those user-generated videos that help promote the song, increasing demand for it, and those that might instead have a negative effect on demand or that might be more damaging to the artist’s reputation more generally.  Should it be the copyright owner’s right to decide?  Should record companies step in to play the role of ‘monitor’ on behalf of the artists that they represent?  Should an artist be encouraging such user behavior?  Should Lady Gaga (given her 6.3 million Twitter followers, 18.2 million Facebook ‘likers’ and audience of 11.4 million at the VMAs) be advocating her view on the issue given that other owners of similar copyrights (such as Prince, as detailed in the case of Lenz v. Universal Music Corp.) might well not feel the same?  Should the law draw up a more concrete definition of “fair use” to set a blanket standard or should the determination of “fair use” remain circumstantial?  Who is right?  With whom should responsibility lie?  You decide…

As Spotify takes off, is a service-based model the future of music? – by “Samuel D”

iTunes has been leading the charge in legal online music sales since 2003 (selling over six billion tracks in that time) by selling individual songs and albums (DRM-free since January) through its iTunes Store software. Some interesting (ostensibly) legal alternatives have popped up over the years (Rhapsody, Pandora, imeem, Lala, MySpace Music), but none pose as great a threat as 2006 start-up Spotify. Spotify takes an entirely legal, service-based, streaming model to a new level, and the results overseas have been astounding.

Spotify has reached deals with major music labels for use of their collections. Users can stream the music with no buffer delay using a free version (with advertisements every half hour) or an ad-free premium version (for the equivalent of $16US per month). Users can also buy a one-day pass to go ad-free for 24 hours (for the equivalent of $1.62US).

Sharing: One of the most popular features of Spotify is sharing. Since the entire streaming library is available to all users at all times, users can share songs and elaborate playlists with users instantaneously. One user could make a 100-song playlist for a party, send it to a friend, and the recipient could play it instantaneously without downloading any files or buying any songs.

Offline: Users can cache up to 3,333 songs for offline use. This, clearly, would be larger than most people’s iTunes library and makes Spotify a direct (and potent) iTunes competitor. It’s also a huge competitive advantage over several of its streaming counterparts.

Geolocation: Spotify is the inverse Hulu, in a way, as it is currently only available overseas in Norway, Sweden, Finland, the U.K., France, and Spain. They are working hard to bring the service to the U.S. The Stockholm-based company is opening a U.S. office this year. The U.S. launch is imminent (as they reach deals with U.S. record labels), but apparently will rely on a mysteriously “slightly different” business model.

spotifyiphone

Portability/Mobile: The basic Spotify experience works through downloadable software (synced across multiple machines), but Apple recently shocked the tech community by approving the Spotify iPhone/iPod Touch app for the App Store. The app lets premium users stream the entire Spotify library over 3G or Wi-Fi AND sync offline. Given the offline sync, the Spotify app would instantaneously eradicate the need to buy music through the iTunes Store for your iPod. An Android app is available, as well. Playlists and settings are wirelessly synced between your phone and computers.

MP3: Spotify (for obvious reasons) does not allow users to download files of songs, but does link to legal music partners (Amazon, etc.) so users could buy MP3s on their own.

The Future: Spotify clearly takes the service-based music model to a new level. Valleywag calls it “everything iTunes should be.” As Spotify adds more and more music to its library and even Mark Zuckerberg sings its praises, how will Apple respond? Spotify is now reportedly making more money for Universal in Sweden than iTunes is. Many believe a service-based model is the future of music now that mobile platforms have caught up, but do people really want to rent music?

Spotify is currently valued around $250 million and with the U.S. launch imminent, that should only grow. Expectations and buzz are certainly high. The service has six million users presently, but is setting its sights high, aiming to take the service-based model to the next level:

“If we can transcend it so that, maybe you don’t actually have to pay for the music, it’s included in your data plan with your carrier or ISP or cable operator; it might be when you buy a new product, a TV screen, that you get one year of music included … devices like new Samsung TV screens, where they’ve got Linux built in, which allows you to do software on it – they’ve got YouTube built in, they might have Spotify built in.”

Spotify Website: http://www.spotify.com/en/
Spotify on Twitter: http://twitter.com/spotify
Spotify on Wikipedia: http://en.wikipedia.org/wiki/Spotify

DRM and DMCA – by “Ben L”

So as we learned, there can be a huge variety of derivative music produced from any given source, like the Amen Break. In fact, you can find 40 variations right here, a testament to remixing. Today, sampling is increasingly restricted, as are attempts around DRM software and copying for use without modification. What seems to be happening, however, is a tug of war on both the legal issues and the technology issues. In both media and software, when is it prohibitively difficult or expensive to get something, people will look for another way. For example, if Girl Talk wants to sell music sampling from 300 songs, that’s going to be a lat of licensing fees and time. The solution is to simply not get the licensing. At the same time, games and all sorts of other software are pirated at some loss to the producer. While the argument “I would never pay for that anyway, and the company hasn’t actually lost anything,” works to some extent, there are certainly a significant number of people who refuse to pay precisely and only because they can get it for free. The balancing act here is to have law and software that allows fair use without letting piracy run amok, that maintains profitability without stifling new work or legitimate use.

This seems to be resulting in a software and legal conflict that, to me at lease, looks like it will continue to turn out well. While youtube keeps up its content identification tool to automatically block, track, or add ads, Maxis has taken the controversial SecuROM software off of Sim 3 , and it looks like they will stay away from hijacking software in the future. Incidentally, I have Spore installed and was displeased to learn about SecuROM from the reading. I wondered how I could not have known about it, until I looked at one of the few non-specialized news stories with an article. Either the LA times reporter, but more likely EA, has mischaracterized the issue. I don’t think it was ever about how many computers Spore could be on, since they likely correctly predicted only a few users might legitimately need more than 3. It was about control of the machine, which nobody wants to give up. Once you lose control of your machine, you lose the ability to innovate, and compete for legitimate uses of products, such as watching DVDs on Linux. But if big companies can neither profitably nor reliably (haiku deCSS anyone?) control their works once they are purchased, nor confidently sue artists such as Girl Talk, then I think we’re doing pretty well. I predict Congress will quickly realize that the pitfalls of passing law that is both unenforceable and against the wishes of a large group of people (prohibition?) apply to the DMCA, and that record companies will learn to put up with remixes. We can’t lose the right to read quickly – there is circular problem. As long as people have machines they control, and there are a lot of them, then it just won’t be practical or profitable to try and control everything.

So SecuROM gets taken off and Linux users still find ways to watch DVDs, but how do companies maintain profit? They seem to be having some success – nobodies stopped making music and software – so I guess they will just have to keep making things people want to buy, and shutting down the biggest of legitimate pirates.

Sharing On The Internet – by “Glen M”

As people become more familiar with the different technologies that are available because of the Internet, it is clear that more and more businesses and different forums for sharing files will become available to consumers, including websites like www.zshare.netwww.rapidshare.com, andwww.megaupload.com. Using these tools, people can upload and share pictures, music, videos and many more types of files. Peer to peer file sharing is an amazing way to both create new goods as distribute existing goods. There are many different organizations that are focusing on the legal and technological issues of these peer-to-peer networks. For instance, thePeer-to-Peer Foundation is attempting to increase the availability of peer-to-peer technologies, and “aim[s] to be a pluralist network to document, research, and promote peer to peer alternatives.”

Michel Bauwens is the founder of the Peer-to-Peer Foundation, and he strongly believes in the ability of people to create and innovate without incentives, such as being paid for one’s actions. Bauwens understands that people will be developing new innovations based on a personal interest and not necessarily on money or personal gain. In addition, due to the collapse of the world economy in late 2008, there are those who begin to wonder if the current economic system is the best possible one, and some people think that peer-to-peer sharing, free software movements, and information projects, such as Wikipedia, are the way of the future and a way to create a better and more secure world.

I believe that individuals will continue to create and develop even their creations are not covered by copyright. In fact, I believe that copyright is something that will hinder that ability of peer-to-peer networks to grow and will limit the growth of information that is freely available on the Internet. For example, the legal cases that have been brought against Napster in the past and The Pirate Bay more recently, in addition to others as well, demonstrate the issues relevant to file sharing networks. The ultimate goal of copyright protection should not be to limit the ability of individual users to get access to files or information they need. Copyright should be intended to protect those who have created from being abused by large groups or corporations. Thus, file sharing networks between individuals would grow and the there would be a mass of information available on the Internet in public domain.