Silicon Flatirons hosted a lecture by Fred Von Lohmann of the Electronic Frontier Foundation entitled “Digital Copyright and Innovation Online: A Little Dose of Optimism.” Von Lohmann framed the challenge of digital copyright as “encouraging innovation and market entry while protecting copyright.” Specifically, the key issue is whether internet intermediaries can be held liable for copyright violations committed by their users. Without more legal clarity almost any entity somehow involved in the infringement of copyrights – from YouTube hosting a pirated video to the ISP transmitting this data to the maker a DVD burner used by an individual to make a copy of this material – could be found liable of violating copyrights. These entities contributing to copyright infringement are much more attractive targets from a copyright holder perspective than the millions of different users directly infringing because they are much easier to find and are likely to have deeper pockets.
These liability concerns are clarified and addressed in “safe harbors” established in the Digital Millenium Copyright Act passed in 1998. Von Lohmann believes this law actually does a fairly good job of setting boundaries on liability in such a way to allow for innovation online – despite the fact that Congress was likely most concerned with protecting ISP providers, the group with the strongest lobby at the time. The safe harbors established specifically protect companies serving as conduits (ISPs), caching (a very limited protection), hosting (i.e. storing material for users including sites like flickr and YouTube), and linking (applicable for search engines).
In order to qualify for these safe harbors the act requires that companies terminate repeat offenders and accommodate for standard technical measures. Companies have reacted differently to the former, with some such as YouTube terminating a users account upon notification of two acts of copyright infringement while some ISPs have taken the other extreme requiring two court decisions to terminate a user. Von Lohman noted the requirements for creating “standard technical measures” – specifically substantial inter-industry cooperation and agreement – are such that none have been created to date. The act also requires those that qualify for safe harbors to register a copyright agent and to takedown material when provided notice by the copyright holder. This last measure is quite common. Von Lohmann noted that as of about a year ago Viacom had sent 350,000 such notices to YouTube. Disqualifiers for the safe harbor provisions include actual or “red flag” knowledge of infringement or control and direct financial benefit – to date the courts have not found the ability to take down material as sufficient to disqualify companies.
Von Lohmann’s belief that this act has been a success stems from the fact that there still is some uncertainty leading to “lots of dealmaking” where each side gives a little in order to avoid the cost and uncertainty of taking a case to court. As an example, Von Lohmann provided YouTube’s voluntarily created filtering system, which helps to identify the use of copyrighted materials and gives the copyright owner the option of having the infringing video taken down or sharing in the ad revenue generated. Some court decisions that could provide further clarity – most notably Viacom vs. YouTube – are on the horizon.
The Silicon Flatirons Center for Law, Technology, and Entrepreneurship brings to campus individuals from legal, technical, regulatory and business backgrounds to discuss issues facing the telecommunications and information technology communities. The Center will next host an Entrepreneurs Unplugged on Monday, October 19 featuring David Cohen, Executive Director of TechStars.
