Double Infringement

In the digital age where nothing is sacred protecting one’s property after uploading it is likely impossible. Whether it is a pirated movie or song that spreads too fast to censor, large companies like Fox who get away with stealing original content and then issue a takedown on said content (Andy). Or the case of taking someone else’s work and appropriating it for hundreds of thousands of dollars like Richard Prince proudly does. This is a good look at the state of copyright infringement in the digital age, and the laws in place meant to curb these infringements, like DMCA and DRM, seem to be aging in internet time.

Copyright infringement can be an ambiguous term. In the book Copyright Nation, a great example is given for how the worst-case scenario of infringement may go.

“John enjoys his daily swim at the university pool. Before he jumps into the water, he discards his T-shirt, revealing a Captain Caveman tattoo on his right shoulder. Not only did he violate Hanna-Berbera’s copyright when he got the tattoo…he has now engaged in an unauthorized public display of the animated character. More ominously the Copyright Act allows for the ‘impounding’ and destruction or other reasonable disposition of any infringing work…John is become Tattoo, the infringer of works. At best, he will have to undergo court-mandated laser tattoo removal; at worst, he faces imminent ‘destruction’ (Tehranian)”).

In the early stages of the internet, congress did take action by drafting a rights management bill called the Digital Millennium Copyright Act (DMCA) in 1998 (Digital Millennium). The internet is a hard beast to tame though and the DMCA has done little to stop the speed of infringement cases.

The DMCA was put in place to formally acknowledge two World Intellectual Property Organization Treaties:” the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty” (DMCA Summary 1998). The treaties recognize all previous copyrighted content in other countries and adhered to a uniform standard on copyright rules.

“The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) each require member countries to provide protection to certain works from other member countries or created by nationals of other member countries. That protection must be no less favorable than that accorded to domestic works. (DMCA Summary)”.

The treaties meant that any content created adhered to its origin country’s copyright and fair use laws. DRM (Digital Rights Management) is the tool in the hand of the DMCA, the sword that cuts down pirate content.

DRM can be summed up by the Open Rights Group; “it is the encoding of music, movies, games and software that allows the owner – that’s the intellectual property owner, not the purchaser – to control how it is used. It is the regionalization on the DVDs you watch, the restriction of what computers you can play your music on, the software that prevents you from printing certain Acrobat files” (Open Rights Group). DRM is not nearly as effective as it sounds because legislative action will never upend the speed of the internet: “There is a staggering amount of copyright infringement taking place every day online and much of it is facilitated by Google, as their own data shows. According to Google, they receive 2.5 million takedown requests per week – and that data does not even include YouTube… Often, even when the links are removed, they pop right back up a few hours later. (Masnick)”. That is for movies alone, the RIAA had similar takedown notices sent to google:

“It took the RIAA about a year to demand that Google remove 20 million separate URL listings. The next 5 million notices were issued in a month and a half, with the trade organization apparently operating at double speed” (Klee). Unfortunately, the velocity of link takedowns will never matter if the technique doesn’t change. The RIAA and MPAA file link complaints against google. Links are very easy to duplicate.

“In effect, the RIAA and others have to send notices over and over for the same piece of content, zapping every single access point. Once that track or album has leaked, there’s no getting the genie back in the bottle. At best, Digital Millennium Copyright Act complaints will only make piracy momentarily inconvenient—torrenters can easily click around and find a link that hasn’t been reported yet (Masnick)”.

If the digital links are seen as calling cards to these pirate sites, the MPAA and RIAA can burn as many as they want, but the pirate base still remains intact, and one can print or post unlimited calling cards. The increasing frequency of takedown requests isn’t only done by the RIAA or the MPAA whether it is a human or robot, however America is by itself in the usage of software to enforce law.

According to The New York Times article Jail Time in the Digital Age: “Using software code to enforce law is controversial enough. Making it a crime to crack that technology, whether or not the use of that ability would be a copyright violation, is to delegate lawmaking to code writers. Yet that is precisely what the D.M.C.A. does (Lessig).

The issue of automated copyright infringement has come up in a ninth circuit court case. Lenz vs. Universal saw a case of copyright infringement put forward over a YouTube video of a dancing baby while a snippet of a song by Prince was played in the background. According to the Harvard Law Review summary, Universal acted too aggressively and issued a DMCA takedown against Lenz’s video, which is what landed them in hot water. Lenz filed a counter-DMCA request under Fair Use and her video was put back up on YouTube. Later, Lenz sued Universal and the case went through despite a dismissal request from Universal (Lenz vs. Universal). The Ninth Circuit court said that Lenz had to demonstrate that Universal willfully ignored Fair Use in issuing the takedown.

“It stated that “the ‘good faith belief’ requirement . . . encompasses a subjective, rather than objective, standard. As such, actual knowledge of misrepresentation (and not mere error) is necessary. Lenz needed to ‘demonstrate that Universal had some actual knowledge that its Takedown Notice contained a material misrepresentation. However, the court also held that Lenz could proceed under a willful blindness theory in showing that Universal believed “there was a high probability that any given video might make fair use of a Prince composition’ and that it deliberately avoided learning of this fact (Lenz vs. Universal)”.

 Judge Smith, who presided over this case concluded that “Universal, by not explicitly considering fair use, violated § 512(f) as a matter of law (Lenz vs. Universal 2016)”. Meaning that Copyright holders need to consider each case of infringement under Fair Use first before they can issue a DMCA Takedown. That is very difficult to program into a software based copyright system like Content ID.  “To combat copyright infringement on YouTube, a system called Content ID was created. When a creator uploads a video that they want protected, a reference file of the same video is sent to a database. The reference file contains audio and video that is scanned and compared against every other video on YouTube automatically (Press-YouTube)”.

Millions of link takedowns are issued by the RIAA and the MPAA alone. That does not include the hundreds of thousands of disputes over copyright on YouTube and other hosting sites. But YouTube’s Content ID system is most prevalent because by its design the system can be used to abuse creators. Doug Walker: who is one of several YouTube creator’s to come out about the abuse had this to say:

““There are no penalties for companies creating false claims or strikes. In fact, there’s a claim where you can take someone’s monetization on a video, even if the claim turns out to be false. So, if a studio says, ‘Hey, your Event Horizon review, that’s our review 100%’; they can take the money you’re supposed to be making on it until you file a dispute And, if they never fight it or are proven to be wrong, they still get to keep all the money that they made on you, no questions asked (Walker)”.

The DMCA aims to protect creator’s work on the internet. Digital Rights Management can range from region lock on DVDs to mass blanket censorship that impacts both potential infringement and honest and fair use content. But that is not all that DMCA and similar acts are capable of achieving. In the hands of media giants like FOX, their actions in stealing content that isn’t theirs and then issuing a take down on the content they steal is worrisome.

The popular show Family Guy, which is owned by FOX, stole a game clip from YouTube. “Fox obtained the clip from YouTube where it had been sitting since it was first uploaded in 2009. Shortly after, Fox told YouTube the game footage infringed its copyrights. YouTube took it down (Andy).” The takedown had occurred as soon as the episode of Family Guy aired and YouTube’s automatic takedown system got to work.

“It’s most likely that this is just another example of YouTube’s Content ID system automatically taking down a video without regard to actual copyright ownership and fair use. As soon as FOX broadcast that Family Guy episode, their robots started taking down any footage that appeared to be reposted from the show — and in this case, they took down the footage they stole from an independent creator (qtd in, Andy)”.

Copyright and fair use can be confusing to some who find photos and use them online. According to Slate.com, Buzzfeed used photos without permission “ When BuzzFeed got into hot water earlier this year about copyright, the website’s CFO said that “[they] try their best to find image sources, but that it can be difficult and he assumed since the photo’s been all over the internet that it was in the public domain ( Catt)”. The public domain refers to content that has had its copyright expired. “In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement (Stim)”.

There isn’t much protection in place when companies with large influence over the leverage of copyright takedowns get their way. But what happens when the act of stealing others art, is a form of art by itself?

Appropriation is defined as a use of a person’s property for commercial use without their consent (Pember et al,). Richard Prince breaks the appropriation law by re-photographing other’s images and works and then selling them for hundreds of thousands of dollars (Parkinson). His works range from appropriation of Sam Abell’s “Marlboro Man” to people’s selfies and other images uploaded online by individuals (Parkinson).

Prince used other individual’s work without their consent, meaning he violated the Appropriation clause of Invasion of Privacy. “Almost all of the people I spoke to whose pictures Prince had used had not been contacted by the artist – either to notify them of his intentions, or to ask them for permission (Parkinson)”.

“Prince’s New Portraits series comprises entirely of the Instagram photos of others. The only element of alteration comes in the form of bizarre, esoteric, lewd, emoji-annotated comments made beneath the pictures by Prince… Prince’s pieces sold for up to $100,000 (£63,700) at New York’s Frieze art fair, according to CNN (Parkinson)”. Richard Prince got away with his appropriation antics and got rich off of it, which flies in the face of every backbone of copyright law since the printing press, which Prince also disrespected. Prince reprinted a first edition replica of A Catcher in the Rye in complete detail of a book from its original origin except it says Richard Prince where it should say J.D Salinger (Parkinson).

Copyright law was ambiguous in its application. With the dawn of the internet, original works have become rare.  Due to aggressive software based takedowns, and ballsy artistic ventures, the preparatory laws for the internet are heavily underequipped to handle the World Wide Web.

 

 

 

 

 

 

 

 

 

 

Works Cited

Andy. “Fox ‘Stole’ a Game Clip, Used it in Family Guy & DMCA’d the Original.” Torrent Freak, Torrent Freak, 21 May 2016, torrentfreak.com/fox-stole-a-game-clip-used-it-in-family-guy-dmcad-the-original-160520/.

Catt, Dan. “10 Good Reasons Buzz Feed Is Going to Pay My Invoice for Copyright Theft.” Slate Magazine, The Slate Group, 13 Sept. 2013, www.slate.com/articl es/technology/culturebox/2013/09/buzzfeed_steals_photographs_one_photographer_s_angry_response.html.

“Digital Rights Management.” Digital Rights Management – ORG Wiki, Open Rights Group, 27 May 2017, wiki.openrightsgroup.org/wiki/Digital_Rights_Management#What_is_it.3F

Keller, Brett. “Future of Music Coalition.” Full Summary of the Digital Millennium Copyright Act | Future of Music Coalition, Future of Music Coalition, 2 Aug. 2004, futureofmusic.org/article/full-summary-digital-millennium-copyright-act.

Klee, Miles. “RIAA sends 25 million takedown notices, only makes piracy worse.” The Daily Dot, The Daily Dot, 11 Dec. 2015, www.dailydot.com/business/riaa-25-million-google-takedown-notices/

“Lenz v. Universal Music Corp.” Harvard Law Review, Harvard Law Review, 10 June 2016, harvardlawreview.org/2016/06/Lenz-v-universal-music-corp/.

Lessig, Lawrence. “Jail Time in the Digital Age.” The New York Times, The New York Times, 29 July 2001, http://www.nytimes.com/2001/07/30/opinion/jail-time-in-the-digital-age.html.

Masnick, Mike. “MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy.” Techdirt. Floor64, 17 Dec. 2012, www.techdirt.com/articles/20121214/23441221394/mpaa-millions-dmca-takedowns-proves-that-google-needs-to-stop-piracy.shtml

Parkinson, Hannah Jane. “Instagram, an artist and the $100,000 selfies – appropriation in the digital age.” The Guardian, Guardian News and Media, 18 July 2015, www.theguardian.com/technology/2015/jul/18/instagram-artist-richard-prince-selfies.

Pember, Don R., and Clay Calvert. Mass media law. McGraw-Hill, 2013. Print.

“Press-YouTube.” YouTube, YouTube, www.youtube.com/yt/about/press/.

“13-16106, 13-16107 Stephanie Lenz v. Universal Music Corp.” YouTube.com, Google, 7 July 2015, www.youtube.com/watch?v=La8HTACvTdo.

Stim, Richard. “What Is Fair Use?” Stanford Copyright and Fair Use Center, The Center for Internet and Society Fair Use Project, 11 Apr. 2017, fairuse.stanford.edu/overview/fair-use/what-is-fair-use/.

Tehranian, John. Infringement nation: copyright 2.0 and you. Pg. 10, Oxford University Press, 2011. Print

“The Digital Millennium Copyright Act of 1998.” Dec. 1998 https://www.copyright.gov/legislation/dmca.pdf

“WIPO Copyright Treaty.” WIPO-Administered Treaties: WIPO Copyright Treaty, World Intellectual Property Organization, 1996, http://www.wipo.int/treaties/en/text.jsp?file_id=295166#P136_19843.

 

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