A Tsunami Hits A DMCA Safe Harbour?

Under the Digital Millennium Copyright Act, service providers are allowed ‘safe harbour’ on content posted, but must act on any infringement notice that is served on them. Pretty straight forward and it is a process that happens everyday.

However, it can break down and go wrong and in the case one notice appears to have closed down not one piece of content infringement but 1.5 million teacher and student blog articles.

Pearson raised a takedown notice on ServerBeach who host Edublogs' websites. Edublog claims to be the oldest and second largest WordPress Multisite setup on the web. The infringement cited was aimed at a teacher's blog, which in 2007, had shared a copy of a 1974  Beck’s Hopelessness Scale's questionaire with his class.

Pearson requested $120 for the 38 year questionnaire, which was posted in 2007 and ServerBeach contacted Edublogs. The notice sent to Edublogs had apparently already been actioned and the offending post removed and not being displayed. However as many of us know, deleting something doesn’t remove it from the search engines’ cache so it is still effectively there and in this case ServerBeach spotted a copy of the disputed blog entry stored in the working memory of Edublogs. When Edublogs did not respond within 24 hours to emails alerting it to the allegedly infringing content, ServerBeach shut down the entire site and some 1.5 million innocent blogs. The action over one DMCA notice impacted a whole community. Was this in fact compliance or over zealous compliance? 

There then followed a open internet spat between ServerBeach and Edublogs.  

A whole innocent community of teachers and students have been effected by something that they should not have been exposed to. Who was right, wrong and whether it could have been handled better is subjective today. What is clear is that it is a bad day’s PR for DMCA, Pearson, ServerBeach and Edublogs and a worse day for a significant education community.

Digitise Your Books For Chump Change

Sometimes we all miss the launch of something and its only when someone discovers it do some of the ramifications come home and the service become ‘news’. We were alerted to a piece in Publishers Weekly ‘1DollarScan Takes Service to Cloud, Authors Guild Worried’

So who and what is 1DollarScan?

The company is based in San Jose and operates under a Japanese company Bookscan. The object of its service is to offer consumers the ability to digitise their books for a 'cent a page' making a 200 page book digital for just 2 dollars, or less than the cost of the postage to 1DollarScan. The book is destroyed in the process, which first cuts the spine, then using high-speed Canon scanners, with optical-character recognition, scans and OCRs the content turning it into a PDF file, which can be read on literally a host of devices.

So what’s the difference with scanning your own books using standard off the shelf equipment and software and creating digital copies using1DollarScan? What’s the difference between copying a CD to create a MP3 file or taping a TV programme to create a digital copy? The reality is that the day is fast approaching when everyone will be able to do it themselves effectively at home and this service is just offering the economies of scale and scope. If the consumer only uses the files for their own use it is ‘fair use.’

The service may be taken up by many people wanting to clear their shelves, or it may fail just as other smart ideas, which no one really wanted. However, the challenge is how we would regulate such a service? 1DollarScan claim that they will ensure consumer self validate their usage and that they will also provide an opt in/out service for the owner of the copyright. From the outside and without the detail it is hard to say how this will work, but given that they will know nothing about the copyright against the titles they are scanning, it would appear half baked and some would suggest 'aiding and abetting' potential infringement.

Do 1DollarScan retain an archive of the files and if so, are these fair use or an infringement?

If 100 requests for the same title are scanned, they will distributed the 100 PDF files to 100 people with little or no control over their future use. They will be effectively 'open files' which would be relatively easy to covert to other formats and trade. The files will once again fall under DMCA Safe habour protection for any trading services that  unwittingly got involved and the owner of the copyright will have to search, and issue take down notices.

When Google scanned books the process was restricted to one body. With this service there could be literally hundreds of the same files in circulation and onus is on the owner to ensure that they are not being traded and infringing copyright.

The challenge is that 1DollarScan will not be the first nor will they be the last service offer and the digitisation cost is going only one way. Without a rights registry we remain a rights industry that some would say is walking backwards into a digital world.

Related :

Publishers Weekly ‘1DollarScan Takes Service to Cloud, Authors Guild Worried’

EMI versus MP3tunes: A Question of Safe Habour

We have often raised a question of whether the “safe harbour” provision of the Digital Millennium Copyright Act (DMCA) work. Our point is that it is a reactive process and depends on the party whose copyright has been infringed raising the appropriate notice and by the time the material is taken down the cat is probably out the bag and had many kittens. However, the recent Viacom versus YouTube found that the site was not liable for illegal content uploads, because it didn’t encourage them and quickly removed them.

Now we have a New York federal court deciding on another case between EMI and cloud based music service MP3tunes. MP3tunes enables users to store their music and access it from computers and mobile devices and also operates Sideload, a music search engine which allows users to discover music tracks and then copy them to their own space. They claim that their service only enables users to store their music online so they can listen to it anywhere and that it can’t held responsible for copyright infringement and are shielded from liability by the “safe harbour” provisions of the DMCA.

EMI claim that MP3tunes and Sideload represent a two-step mechanism for the discovery and acquisition of copyright music. EMI claim that MP3Tunes ‘does not own the music it exploits; nor does MP3tunes have any legal right or authority to use or exploit that music.’

The legal debate is also about whether someone who bought an EMI CD, ripped it to their computer and uploaded it to MP3Tunes for their own use and so they can listen to it anywhere, is in breach of copyright. It is further clouded by EMI initially claiming they did not place free downloads on the internet and that MP3tunes should have know that any their music on the internet was copyrighted. This was exposed when it was accepted that EMI had given away free copies of songs to the likes of Walmart, Amazon.com, MySpace, Facebook, Google, hoping the songs would go viral. The problem was that they went viral in a way the had not bargained for and made their somewhat righteous stance appear somewhat hypocritical when they had no way of distinguishing many of the music tracks they had leaked online with the tracks they accused MP3tunes of infringing.

Last week, the Electronic Frontier Foundation (EFF), filed an amicus brief along with others asking the court to protect the “safe harbour” provisions of the DMCA. DMCA defendants fear that the case could go beyond online music storage and impact e-mail, photo and video storage applications.

We don’t like DMCA and safe habour but until we can find a better way its what we have today. Closing down DMCA through this action could have serious implications on social network services and digital restictions on both legitimate as well as infringing material. Many say we should learn from music industry and yet again they are in showing us what not to do.

Spanish Court Rules in Favour of YouTube

A court in Madrid has ruled that YouTube is not liable for copyright infringement for video material users have uploaded from Spanish television station Telecino. YouTube is not obliged to monitor all content and determine infringement and in ruling the court overrules a provisional ruling two years ago, which ordered YouTube to stop hosting any Telecino videos.

However, YouTube must respond quickly to claims from copyright holders about infringement and cooperate with the holders of the rights to immediately withdraw the content once the infraction is identified.

The ruling was welcomed by YouTube, which said that it was a vindication of EU laws which protect online service providers from liability for material that third parties publish. Some say that the ruling now protects copyright owners’ interests but also enables the likes of YouTube to operate and not get bogged down checking every clip.

This ruling also aligns with an earlier US District Court one that ruled similarly in their favour against Viacom. YouTube also now qualifies for similar protection in the US and in the EU. The court said that YouTube only becomes liable for infringement once it has been told of specific videos that infringe specific copyrights and that it should act to remove these from its site.

Europe however is not united on this issue, a court in Hamburg allowed a collecting society's suit to go to trial on the issue earlier this year and claimed that there "are some good reasons to think that YouTube indeed has some duty to take care of detecting illegal uploads". Also a Belgium court in 2007 ruled that ISP Scarlet should use technology to filter out of its traffic files which infringe copyright.

Safe Harbour may appear to be the easiest way to manage copyright today, but it is reactive not proactive and in effect tries to put the cat back in the bag after the event. The reality is that once the cat is out, it is out. Today’s technology there should enable ways in which we can certify authorisation, licence and track infringement and merely depending on owners to track everything, everywhere, appears to be a legal cop out.