1. Class 21 Copyright, Winter, 2010 Online Distribution Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. Running the Internet n Hypo: Broadband and ISPs u A has a computer at home and types in the complete poems of Poet u A knows his friend B likes Poet u A sends an email over his AT&T broadband connection with the file attached to B. u B opens the email and stores it on his PC. n Copyright issues? A? B? AT&T? October 21, 2015Copyright © 2005-10 Randal C. Picker2

3. Answer n Answer u A violates 106(1), 106(3) u B violates 106(1) u AT&T? w They will claim 512(a) safe harbor for Transitory Digital Network Communications October 21, 2015Copyright © 2005-10 Randal C. Picker3

4. Running the Internet n Hypo: Gmail u A has a computer at home and types in the complete poems of Poet u A sends an email to himself over AT&T at his Gmail account. u The file is then stored on servers at Google. n Copyright issues? A? AT&T? Google? October 21, 2015Copyright © 2005-10 Randal C. Picker4

5. Answer n Answer u AT&T, as before u A, now has a second copy u Google will assert 512(c) October 21, 2015Copyright © 2005-10 Randal C. Picker5

6. October 21, 2015Copyright © 2005-07 Randal C. Picker6 DMCA Safe Harbors: 512(c) n Section 512 u (c)(1) In general. ‑‑ A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider ‑‑

7. October 21, 2015Copyright © 2005-07 Randal C. Picker7 512(c) w (A) (i) does not have actual knowledge that the material or an activity using the material on t(he system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

8. October 21, 2015Copyright © 2005-07 Randal C. Picker8 512(c) w (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and w (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

9. 512(i): Conditions for Eligibility n (1) A CCOMMODATION OF TECHNOLOGY. — u The limitations on liability established by this section shall apply to a service provider only if the service provider — w (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and October 21, 2015Copyright © 2005-10 Randal C. Picker9

10. 512(i): Conditions for Eligibility w (B) accommodates and does not interfere with standard technical measures. n (2) D EFINITION. — u As used in this subsection, the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and — w (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; October 21, 2015Copyright © 2005-10 Randal C. Picker10

11. 512(i): Conditions for Eligibility w (B) are available to any person on reasonable and nondiscriminatory terms; and w (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. October 21, 2015Copyright © 2005-10 Randal C. Picker11

12. Running the Internet n Hypo: Google u A types in the complete poems of Poet u A run his computer as a web server so that others can download the file using a URL assigned by A u Google indexes the Internet and returns search results with a link to the file created by A. n Copyright issues? A? Google? October 21, 2015Copyright © 2005-10 Randal C. Picker12

13. Answer n Answer u A has violated 106(1) as before u In running a server and assigning a URL, A is making the file available for downloading. w Is that equivalent to distributing the file under 106(3)? [Most courts say no] u Google will assert 512(d) October 21, 2015Copyright © 2005-10 Randal C. Picker13

14. 512(d) n (d) I NFORMATION L OCATION T OOLS.— u A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider — October 21, 2015Copyright © 2005-10 Randal C. Picker14

15. 512(d) u (1)(A) does not have actual knowledge that the material or activity is infringing; u (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or u (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; October 21, 2015Copyright © 2005-10 Randal C. Picker15

16. 512(d) u (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and October 21, 2015Copyright © 2005-10 Randal C. Picker16

17. 512(d) u (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link. October 21, 2015Copyright © 2005-10 Randal C. Picker17

18. Real Cases n Links Only u Perfect 10 v. Google n Two Patterns u Public Sites ala YouTube w Open to anybody u Password protected sites as seen in CCBill cases w Open to anybody who will pay October 21, 2015Copyright © 2005-10 Randal C. Picker18

19. October 21, 2015Copyright © 2005-07 Randal C. Picker19 [yt home]

20. Terms of Use n YouTube u http://www.youtube.com/t/terms http://www.youtube.com/t/terms u See Section 7 (Account Termination Policy) u See Section 8 (DMCA) October 21, 2015Copyright © 2005-10 Randal C. Picker20

21. User-Generated Content n Some Examples u “Recut, Reframe, Recycle”: Center for Social Media w http://www.centerforsocialmedia.org/resourc es/publications/recut_reframe_recycle/ http://www.centerforsocialmedia.org/resourc es/publications/recut_reframe_recycle/ n Ten Things I Hate About Commandments u http://www.youtube.com/watch?v=u1kqqMX WEFs&feature=related http://www.youtube.com/watch?v=u1kqqMX WEFs&feature=related October 21, 2015Copyright © 2005-10 Randal C. Picker21

22. User-Generated Content n The Evolution of Dance u http://www.youtube.com/watch?v=dMH0bH eiRNg http://www.youtube.com/watch?v=dMH0bH eiRNg October 21, 2015Copyright © 2005-10 Randal C. Picker22

23. 512(g) n Replacement of removed or disabled material and limitation on other liability. ‑‑ u (1) No liability for taking down generally. ‑‑ Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. October 21, 2015Copyright © 2005-10 Randal C. Picker23

24. 512(g) u (2) Exception. ‑‑ Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider ‑‑ October 21, 2015Copyright © 2005-10 Randal C. Picker24

25. 512(g) w (A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material; w (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and October 21, 2015Copyright © 2005-10 Randal C. Picker25

26. 512(g) w (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network. October 21, 2015Copyright © 2005-10 Randal C. Picker26

27. October 21, 2015Copyright © 2005-07 Randal C. Picker27 Posting on YouTube I n Hypo u NBC broadcasts Heroes u ABC likes the show, copies it and rebroadcasts it the next night n Copyright violation?

28. October 21, 2015Copyright © 2005-07 Randal C. Picker28 Answer n Answer u Yes

29. October 21, 2015Copyright © 2005-07 Randal C. Picker29 Posting on YouTube II n Hypo u NBC broadcasts Heroes u YouTube (the corporate entity) likes the show, copies it and posts it on its website n Copyright violation?

30. October 21, 2015Copyright © 2005-07 Randal C. Picker30 Answer n Answer u Yes

31. October 21, 2015Copyright © 2005-07 Randal C. Picker31 Posting on YouTube III n Hypo u NBC broadcasts Heroes u Sam Smith likes the show, copies it and stores the copy on a server maintained by YouTube (but no one other than Smith can play the show; it otherwise just sits there) n Copyright violation for Smith? YouTube?

32. October 21, 2015Copyright © 2005-07 Randal C. Picker32 Answer n Answer u Probably no violations w Smith will claim time-shifting under Sony, just difference in storage medium w YouTube will claim protection under Sony substantial noninfringing use test, plus will claim 512(c) safe harbor

33. October 21, 2015Copyright © 2005-07 Randal C. Picker33 Posting on YouTube IV n Hypo u NBC broadcasts Heroes u Sam Smith likes the show, copies it and stores the copy on a server maintained by YouTube u YouTube automatically assigns it a URL; anyone who invokes the URL can play the show on YouTube’s website n Copyright violation for Smith? YouTube?

34. October 21, 2015Copyright © 2005-07 Randal C. Picker34 Answer n Answer u Only change is ability to perform the work publicly, a right reserved to the copyright holder under 106(4) u That ability is something created by the YouTube system and is separate and apart from the storage of copies of works w No need to assign publicly accessible URL

35. October 21, 2015Copyright © 2005-07 Randal C. Picker35 Answer u Who does the public performance? Smith? YouTube? u Does 512(c) cover public performances?

36. The Lawsuit n Viacom v. YouTube October 21, 2015Copyright © 2005-10 Randal C. Picker36

37. Perfect 10 v. CCBill n What does CCBill tell us about the likely outcome of the Viacom/YouTube lawsuit? October 21, 2015Copyright © 2005-10 Randal C. Picker37