OUT-LAW News, 24/06/2010
YouTube is protected by the safe harbour provisions of US copyright law and is not guilty of copyright infringement when users post unauthorised videos to the site, according to the US court hearing a $1 billion suit brought by media giant Viacom.
YouTube only becomes liable for copyright infringement once a copyright owner tells it of specific illegal files, the court said, giving summary judgement in YouTube’s favour.
Viacom filed the lawsuit in 2007, claiming that Google-owned YouTube’s business was based on copyright infringement and that, knowing that the site was full of copyright violations, it profited from the unauthorised use of its copyrighted material.
The US District Court for the Southern District of New York has ruled, though, that YouTube only becomes liable for infringement once it has been told of specific videos that infringe specific copyrights and fails to act to remove them from its site.
Like European Union law, US law the Digital Millennium Copyright Act (DMCA) allows online service providers to avoid liability for their users’ law-breaking actions and absolves them of any burden to monitor their service for infringements of the law.
Once companies are told of law-breaking, though, they must act quickly to disable, remove or block the content or become liable, the safe harbour provisions of the DMCA say.
Viacom argued that Google did not deserve safe harbour protection because it knew that, in a general sense, infringement was taking place on a massive scale.
‘[Google is liable] for the intentional infringement of thousands of Viacom’s copyrighted works, … for the vicarious infringement of those works, and for the direct infringement of those works,’ said the Court’s ruling, quoting from Viacom’s case. ‘[Google] had ‘actual knowledge’ and were ‘aware of facts and circumstances from which infringing activity [was] apparent’ but failed to ‘act expeditiously’ to stop it.’
Viacom said that Google profited from YouTube’s carrying of copyrighted material and had it in its power to stop infringement but did not do so, and was therefore liable for the infringement.
The Court said that what it had to decide was whether Google had to have notice of specific infringements before it was forced to remove videos or whether a ‘general awareness’ of infringing activity was enough to make it liable if it failed to remove material from its service.
The Court outlined the thoughts of committees from the US’s two parliamentary chambers and said that they indicated that specific knowledge of individual infringements was what a company needed to have before it became liable for those infringements.
‘The tenor of the foregoing provisions is that the phrases ‘actual knowledge that the material or an activity’ is infringing, and ‘facts or circumstances’ indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items,’ said the ruling. ‘Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries.’
The Court said that Viacom can have no quibble with how YouTube’s current system operates.
‘The present case shows that the DMCA notification regime works efficiently,’ the ruling said.
‘When Viacom over a period of months accumulated some 100,000 videos and then sent on mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.’
The Court said that previous cases made it clear that the responsibility to find and identity infringing material was the copyright holder’s, not the online service provider’s. ‘If a service provider knows (from notice from the owner, or a ‘red flag’) of specific instances of infringement, the provider must promptly remove the infringing material,’ it said.
‘If not, the burden is on the owner to identify the infringement. General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements,’ the ruling said.
Judge Louis Stanton rejected Viacom’s claims that YouTube was like file sharing software publishers such as Grokster or Lime Wire and that the same legal principles should apply in this case as did in successful actions against those companies.
Those companies distributed software ‘with the expressed intent of succeeding to the business of the notoriously infringing Napster’, Stanton said in his ruling. YouTube, on the other hand, provided a platform for content and removed infringing material when informed about it.
The Court gave a summary judgment in Google’s favour on all the points it considered, and told the companies to consult with each other on whether any disputes had been left unresolved by the ruling.
Political Economy – Morning briefing: China says Google will obey censorship laws, Britain’s deficit shrinks slightly: “China says Google will obey censorship laws, Britain’s deficit shrinks slightly
By Ariana Eunjung Cha, Washington Post, 20.07.2010
*China said Tuesday that Google’s license to operate in the country had been renewed after the company pledged to obey censorship laws.
The remarks were Beijing’s first comments about Google since the search giant shocked the Internet world in January with the announcement that it would end four years of self-censorship and pull out of the country entirely after alleged intrusions into its network by hackers.
In March, Google raised the stakes in its censorship row with China by shutting down its search service in the mainland and redirecting searches to Hong Kong, which is semi-autonomous and enjoys greater freedom of speech.
Zhang Feng, an official with China’s Ministry of Industry and Information Technology, said at a news conference on Tuesday that Google had promised to ‘obey Chinese law’ and avoid linking to material deemed a threat to national security or social stability.
Zhang also talked about Google’s planned ‘rectification and reform,’ referring to the U.S. search company’s decision to stop switching users automatically to its Hong Kong search site. Instead, users arrive at a screen that allows them to click to get to Google Hong Kong. ‘The rectification and reform in the annual application basically conforms to regulation,’ Zhang said.
A Google spokeswoman would not comment directly about Zhang’s remarks but reiterated that ‘the products we are keeping on Google.cn (Music, Translate, Product Search) do not require Google to censor.’ She said Web search is being offered from Google.com.hk without censorship.
‘There is no censorship being done by Google on either domain,’ she said.”
OUT-LAW News, 08/07/2010
Two of the UK’s biggest ISPs will ask the UK courts to scrutinise the controversial Digital Economy Act to determine whether or not it conflicts with existing laws on privacy and electronic communications.
BT and TalkTalk have asked the High Court to conduct a judicial review of the law, which was passed amidst the horse-trading and rushed compromise of the controversial ‘wash up’ process that took place just before this year’s general election.
That process allows the passing of potentially large numbers of laws as long as the opposition does not seek to block them. This gives the opposition significant power and deals are made between Government and opposition without the usual Parliamentary or public scrutiny.
The progress of the Digital Economy Act was already seen as rushed before it entered the wash-up period and it has been criticised for imposing significant obligations on ISPs without proper consideration of the effects of its measures.
The law allows for the passing of regulations that would, for the first time, force ISPs to disconnect their customers if intellectual property rights holders believed that an account was used for the unauthorised sharing of copyrighted material.
BT and TalkTalk said in a statement that they are ’seeking clarity’ from the High Court on the legality of the law’s provisions before spending significant sums on systems to implement them.
‘The companies share a concern that obligations imposed by the Act may not be compatible with important European rules that are designed to ensure that national laws are proportionate, protect users’ privacy, restrict the role of ISPs in policing the Internet and maintain a single market,’ said the statement.
The UK has laws that implement EU directives on data protection and electronic privacy that control how organisations gather, process and use information online. They also govern what information can be gathered from electronic communications and say that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.
The ISPs want the High Court to rule on whether the Digital Economy Act conflicts with existing laws based on these directives.
‘If clarity is not gained at this stage then BT, TalkTalk and other industry players may end up investing tens of millions of pounds in new systems and processes only to find later that the Act is unenforceable and the money wasted,’ the companies said in a statement.
‘The Digital Economy Act’s measures will cost the UK hundreds of millions [of pounds] and many people believe they are unfair, unwarranted and won’t work,’ said TalkTalk chairman Charles Dunstone. ‘It’s no surprise that in Nick Clegg’s call for laws to repeal, this Act is top of the public’s ‘wish list’.’
‘Innocent broadband customers will suffer and citizens will have their privacy invaded. We think the previous Government’s rushed approach resulted in flawed legislation,’ he said. ‘That’s why we need a judicial review by the High Court as quickly as possible before lots of money is spent on implementation.’
Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that once a law has been passed by the country’s elected representatives in Parliament there is little that unelected judges can do to change it.
‘It is not in the power of the courts to throw out a primary Act of Parliament,’ said Robertson. ‘All the court can do is make a declaration that a law is in breach of other obligations. That declaration would put pressure on Parliament to revisit the Act.’
‘This law was rushed through Parliament and didn’t get the scrutiny it deserved. It’s a bad law, in my view. Unfortunately, it won’t be easy to change it unless and until there is political will to do so,’ he said. ‘The courts can’t just strike it down.’
‘It’s disappointing that we feel the need to take action but we feel we have no choice,’ said BT Retail chief executive Gavin Patterson. ‘We have to do this for our customers who otherwise run the risk of being treated unfairly. Our dispute is not with the current Government but with the previous administration which pushed this through without due process. We need clarity about whether this legislation is compatible with important EU laws.’
BBC News – Pakistan to monitor Google and Yahoo for ‘blasphemy’: “Pakistan to monitor Google and Yahoo for ‘blasphemy’
Google website – file Pakistan says the main website will be unaffected
Pakistan will start monitoring seven major websites, including Google and Yahoo, for content it deems offensive to Muslims.
YouTube, Amazon, MSN, Hotmail and Bing will also come under scrutiny, while 17 less well-known sites will be blocked.
Officials will monitor the sites and block links deemed inappropriate.
In May, Pakistan banned access to Facebook after the social network hosted a ‘blasphemous’ competition to draw the prophet Muhammad.
The new action will see Pakistani authorities monitor content published on the seven sites, blocking individual pages if content is judged to be offensive.
Telecoms official Khurram Mehran said links would be blocked without disturbing the main website.
The ban on Facebook was lifted after about two weeks, when the site blocked access to the page, called Everybody Draw Muhammad.
Protesters condemn a page of Facebook – May 2010 The Draw Muhammad page on Facebook sparked protests in Pakistan
Facebook itself is not on the new list of websites to be monitored. A number of links from YouTube will be blocked but not the main site itself.
Many Muslims regard depictions of Muhammad, even favourable ones, as blasphemous.
In 2007, the government banned YouTube, allegedly to block material offensive to the government of Pervez Musharraf.
The action led to widespread disruption of access to the site for several hours. The ban was later lifted.
No need for net neutrality action, says UK regulator | Pinsent Masons LLP: “No need for net neutrality action, says UK regulator
OUT-LAW News, 28/06/2010
SNIPPET: While US telcos, politicians, user rights activists and big media companies have spent the past three years wrangling, tussling, lobbying and shouting about net neutrality, the issue has never caused much trouble elsewhere.
Now UK telecoms and media regulator Ofcom has made it official: net neutrality is not a cause for worry. Yet.
Net neutrality demands that ISPs treat all traffic the same. Some US telcos are of the view that they should be able to favour the traffic of media companies that pay them. Opponents say this fundamentally undermines the open internet.
Ofcom has produced a report (68-page / 595KB PDF) into the issue which says that we shouldn’t be concerned: it has had no serious complaints about the issue and thinks there are no grounds for issuing blanket demands about traffic shaping yet.
It said that consumers don’t have much to worry about, though it says that there is a danger they might be confused by various firms’ traffic management policies.
It might seem anti-climactic compared to the US hysteria, but if it keeps UK politicians from proposing some of the ham-fisted laws mandating exactly how ISPs can and can’t behave that the US could face, I’ll take anti-climactic any time.
Telecoms – Regulatory Framework: “Public consultation on the open internet and net neutrality
Deadline: Thursday 30 September 2010
DG Information Society and Media has launched a public consultation on key questions arising from the issue of net neutrality. European Commission Vice-President for the Digital Agenda, Neelie Kroes, announced in April 2010 her intention to launch this consultation in order to take forward Europe’s net neutrality debate. The consultation is part of the Commission’s follow-up to its commitment – one of the prerequisites for the successful conclusion of the 2009 EU telecoms reform package – to scrutinise closely the open and neutral nature of the internet and to report on the state of play to the European Parliament and the Council of Ministers.
The consultation covers such issues as whether internet providers should be allowed to adopt certain traffic management practices, prioritising one kind of internet traffic over another; whether such traffic management practices may create problems and have unfair effects for users; whether the level of competition between different internet service providers and the transparency requirements of the new telecom framework may be sufficient to avoid potential problems by allowing consumers’ choice; and whether the EU needs to act further to ensure fairness in the internet market, or whether industry should take the lead. All interested parties – service and content providers, consumers, businesses and researchers – are invited to respond to the consultation by 30 September 2010. The consultation will feed into a Commission report on net neutrality, which should be presented by the end of this year.
* Press release: Digital Agenda: Commission launches consultation on open internet and net neutrality (IP/10/860)
* Consultation document: Questionnaire for the public consultation on the open internet and net neutrality in Europe pdf – 20 KB
Specific Privacy Statement pdf - 20 KB