September 18, 2009

AP News Registry aims at most flagrant infringers

AP IP

More details about Associated Press’s move to protect its content unveiled at Seattle summit

JD LasicaI left the Pacific Northwest Newspaper Association Summit of newspaper publishers and ad managers yesterday just as two executives from the Associated Press were winding up their presentation on the new AP News Registry.

The new initiative, announced in July, contains two key components:

• All AP stories will be released online wrapped in a new microsoformat that includes rights info, who created it, etc.

• The wrapper also will carry a built-in “digital beacon,” or tracker, to monitor use of the content by others to track usage and compliance. (As I understand this, the content is not encrypted but carries a lightweight bug technology.)

As a social media consultant and journalist who spoke at the summit just an hour earlier, I asked whether the dialogue and AP’s plans were public information, and Kevin Walsh, AP’s Kevin Walsh, Vice President of Marketing, responded, “It is now.”

AP’s plans were met with the predicable negative reaction in the blogosphere (see, for example, the comments at bottom of this article). But AP should be credited with its transparency during this process, and from what I heard at the summit, its plans make a lot of sense. Thousands of sites are unfairly piggybacking off the work of journalists, and if newspapers and news organizations like the AP are to survive, there has to be a mechanism for compensation.

As an internal AP document titled Protect, Point, Pay – An Associated Press Plan for Reclaiming News put it: “The evidence is everywhere: original news content is being scraped, syndicated and monetized without fair compensation to those who produce report and verify it.”

Fair use won’t be easy to define

It’s a topic I have some familiarity with, having written Darknet and reported on Hollywood studios and media companies’ reluctance to embrace their digital future. At the time I wrote the book, there was widespread music file sharing (there still is) but also an increasing recognition that the original Napster was misguided and the music industry needed to devise legitimate forms of compensation for the artists. (Apple’s iTunes and Rhapsody are among the companies still trying to create a frictionless business model.)

My view on the new AP initiative is similar: Some reuse of AP’s content is socially and legally acceptable, but there needs to be limits. What will matter, in the end, is how this plan will be carried out by AP and the cooperative’s members. If they go too far and claim “all rights reserved” around the first two sentences of every AP article, the blowback will be enormous. Fair use exists, and in the past the AP has paid too little heed to those concerns — even though AP reporters rely on the same fair use doctrine in their reports nearly every day. (For example, I didn’t get the AP’s permission to use the graphic at the top of this post.)

Todd B. Martin, AP’s Vice President, Technology Development, reassured the publishers in the room that the intent of the news registry isn’t to go after every blogger who borrows a snippet of an AP news story.

“We’re focused on removing the ambiguity around the use of our content.”
— Todd B. Martin, VP for technology, AP

Instead, Martin said, “We’re not going to stop a blogger from cut and pasting an article. But we are giving you visibility into the 20,000 other domains where your content appeared and the top users and where it was monetized. So you can get a list of the top 100 [infringing] sites with over 100,000 views, and then facilitate business development opportunities” with the sites in question. The registry, Martin said, would help create new business opportunities and products and also buttress more rigorous legal enforcement of the AP’s intellectual property. Continue reading

April 18, 2007

Web 2.0 Expo: Copyright risks

fred von lohmann

(Photo of Fred von Lohmann at ETech last month by Scott Beale — I was exhausted today so didn’t bring my camera!)

The most interesting session of Day Four of the Web 2.0 Expo today, for me, was the presentation by Electronic Frontier Foundation attorney Fred von Lohmann about copyright risks. Fred (whom I devoted a chapter to in Darknet and who blogs at  Deep Links) laid out how Web 2.0 companies built on user-created content receive some protections under the 1998 Digital Millennium Copyright Act (PDF).

Most attorneys refer to these four sections of the DMCA as the "safe harbor" provisions, but Fred likened them more to islands than harbors.

DMCA Section 512(a) is "Conduit Island": if you’re an Internet Service Provider providing connectivity, you won’t be held responsible if your users infringe content. This applies to pipe providers like AOL, Verizon, Comcast and AT&T.

Section 512(b) is "Caching Island," which von Lohmann said "was designed for AOL’s caching activities around 1997." This  "walled network" provision is largely outdated.

Section 512(c) is "Hosting Island" and may be the most part of the DMCA as it applies to Web 2.0 start-ups and web-hosting companies. 

Section 512(d) is "Search Engine Island," which protects indexing and searching of possibly infringing materials and covers all search engines, including MSN, Yahoo and Google.

Von Lohmann talked chiefly about the third provision, companies that host user-generated content. It’s a huge category and growing bigger (as yesterday’s stats show, growing from 2 percent to 12 percent of the online content universe in the past 2 years), covering blog hosting sites like Blogger, music lockers like mp3tunes, music playlist sharing sites like Avvenu and imeem, photo sharing sites like Flickr, video sharing sites like YouTube and Ourmedia, file hosting services like Pando, and combination sites like MOG.

He extended his metaphor this way: "The big question is: how close to the waterline are you?: The search engines are well protected, but it’s unclear how safe new businesses in the hosting arena are, given that there is little or no case law. 

To get on and stay on "the island," von Lohmann said, it’s important to follow three steps: Register a copyright agent with the U.S. Copyright Office; and provide provisions for notice and takedown and an infringer termination policy in your site’s Terms of Service.

Creative Commons

Von Lohmann then moved into an interesting discussion of Creative Commons licenses and pointed to the millions of photos on Flickr available under various CC licenses.

At one point I held aloft my Nokia N93 camera phone and asked Fred, "I just took a photo of you. I’m uploading it to my Flickr account and giving it a CC Attribution license. Are others free to remix it and use it commercially, or do they need your permission as well?"

The answer, he said, is complicated. It all depends. You skirt the copyright issue because of the Creative Commons license. But other laws come into play, chiefly centering on privacy and rights of publicity.

A person can’t take a photo of Michael Jordan at a public event and then embed that image into a shoe line for commercial purposes without obtaining Jordan’s permission. You can’t use a high-powered telephoto lens to peer into someone’s bedroom and then make the images available for people to use however they want. Ultimately, test cases will determine the contours of the law in this area.

Another interesting issue is: What does noncommercial mean? "Creative Commons has had enormous internal debates about that. There’s an enormous grey area — the licenses don’t define what ‘noncommercial’ means." Your best bet is to go into the CC wiki and examine the discussion about commercial and noncommercial uses.

Cross-posted to Darknet.

More Web 2.0 Expo coverage via Technorati.

And at Wired: Tim O’Reilly: Web 2.0 Is About Controlling Data.

March 14, 2007

Not on the ‘NewsHour’

I was invited to appear on today’s NewsHour with Jim Lehrer on PBS today to discuss Viacom’s lawsuit against YouTube, but couldn’t make it. I think I would have been partnered with Susan Crawford, an assistant professor of law at Cardozo Law School, whom I’ve admired for years as a reformer in the field of intellectual property (and whom I’ve written about on Darknet.com).

But I would have taken a very different view than Susan proferred on today’s newscast. (Here’s an mp3 of today’s segment.) Susan focused on whether YouTube is protected under the Digital Millennium Copyright Act, and said that the lawsuit was "surprising" (no, it wasn’t) and that Google and YouTube have been "quite active in responding to notices from Viacom" (certainly beside the point, when thousands of additional infringing videos are posted every day). "What YouTube is doing is exactly consonant with the statute," she said. "This is not a pirate site."

Jeffrey Brown cited Napster as a precursor, and that’s the parallel I would have made. I used Napster, and I use and like YouTube, but both seemed to me to not only straddle the line of copyright infringement but to invite infringement. Here in Silicon Valley, YouTube is held up as an icon of disruptive technology, its founders toasted and lauded, but at the same time few of us doubt that its popularity was built on the basis of stolen professionally produced content from the studios. (Susan suggested otherwise.) Meantime, as many as 300 other video hosting sites manage to police their sites to remove infringing videos uploaded by users. Others do not, of course.

Reports in the press have surfaced that Google licensed Audible technology to identify infringing videos, but has been slow to activate it, though the activation process takes only days. Meantime, YouTube has not made a point of suspending members who repeatedly upload copyrighted content. (If they’ve done so, they’ve been quiet about it.)

I wrote in Darknet that media companies need to embrace the new digital realities and offer people an easy, user-friendly way to consume and use media online. But I also drew a line at pilfering others’ material without their buy-in. It’s up to Viacom to decide how it wants its content displayed. If it wanted to do a deal with YouTube, it would have, and still can. I don’t believe for a moment that by filing a lawsuit, Viacom is closing the door on all the business and distribution models that the new digital realm has to offer.

Let me be clear: I don’t want Congress to revisit the DMCA and tighten the screws on users and hosting sites that stretch the boundaries of copyright law. But I do think Google has made a mistake in relying on the DMCA’s safe harbor provisions rather than aggressively preventing the infringement from taking place in the first place. It would cost money, yes — but far less than the money it will cost to defend a billion-dollar lawsuit.

This will be a fascinating case to watch.

More:

News.com: Copyright quagmire for Google and YouTube

Economic Times: Viacom gets support from rivals in Google-YouTube war.

CrunchGear: Viacom’s Lawsuit Against YouTube Has No Chance of Succeeding.

Plagiarism Today: Why Google is in copyright trouble.

March 13, 2007

Viacom: One beeeeelion dollars

Dr. Evil

(copyright photo by New Line Cinema)

From Jeremiah Owyang:  Viacom: “One Beeeeelion Dollars.”

This is one of those news stories we’ve all been expecting for some time (and which will be old news by the time tomorrow’s newspapers hit the doorstep).

I’m a bit conflicted about this. I like YouTube a lot (except for its 4 big failings). But I’ve never liked the fact that they became more popular than Ourmedia largely because we policed our site for infringing content and they didn’t. I don’t see Viacom as the bad guys here, though many bloggers may disagree. 

Naturally, the blogosphere is going nuts about this one. Here’s a sampling:

John Furrier:  The beginning of the end for old media.

Terry Heaton: Viacom sues Google ("surprise, surprise!)

Jeff Jarvis: Demonizing us. (A bit over the top) 

Mark Cuban: Come on, Mark, post something. 

Tech Crunch: Viacom Drops a $1 Billion Nuke on Google 

CNET News.com: YouTube’s fate rests on decade-old copyright law.

More at Technorati.