Documents Unsealed in Vicaom v. Youtube — Youtube Shady; Viacom Scorned & Seeks Vast Shift in 512(c) Immunity

March 18, 2010

Today, a New York District Court unsealed documents in Viacom v. Youtube and my-oh-my there are some doozies inside.  Both Viacom and Youtube come out looking like shady characters; Viacom looks like a scorned lover smashing up Youtube’s car up after their failed Youtube buyout and Youtube looks like an prick purposely trying to induce copyright infringement in brazen Napster/Grokster fashion.

Although these are juicy gossip nuggets, the real meat here lies in how Viacom is defining service provider immunity under 512(c).  Viacom’s argument is that Youtube is not eligible for immunity under 512(c) because they are not engaged in “storage,” but rather acting as a media company outside of what Congress intended to immunize.  If successful, this would be a radical shift in how 512(c) immunity is currently defined and would subject almost any website that hosts any user content, like tube sites, internet forums, and publishing platforms to huge copyright suits.

The “ZOMG UR KILLING TEH INTERNETZ” argument gets thrown around pretty quickly these days, but the importance of 512(c) immunity cannot be overstated.  Let’s hope the District Court doesn’t use Youtube’s pretty iffy emails to torpedo 512(c) immunity for everyone.

For more, check out Eric Goldman’s excellent analysis of the dirt in summary judgments motions.

“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

December 15, 2009

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.


With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.

New Copyright Czar, Background in Trade and Education

September 27, 2009

by Jason Fischer

Victoria the Not-so-Terrible

Victoria the Not-so-Terrible

On Friday, President Obama appointed the first “Intellectual Property Enforcement Coordinator,” a new position created last year by the Prioritizing Resources and Organization for Intellectual Property Act (a.k.a. the PRO-IP Act). While many criticized that legislation as further enlisting U.S. law enforcement to do the dirty work of the RIAA and MPAA, some of those same voices are praising the president’s choice of Victoria A. Espinel as a fair compromise.

“We believe she will be fair in her approach to intellectual property enforcement issues,” said Gigi Sohn, president of Public Knowledge, a left-leaning digital-rights advocacy group. (source)

This commentator hopes that Ms. Espinel’s understanding of the complex landscape of international trade, combined with a history in academics — where the value of citation and accretion is recognized over draconian exclusion — will help move copyright policy towards something a bit more sensible than life-plus-70.

This story has also been published on The Tactical IP Blog.

Piracy = Terrorism (???)

March 31, 2008

One of my favorite Family Guy episodes is It Takes a Village Idiot, and I Married One.

Though clearly more intelligent than her opponent, Lois’ campaign falters as Mayor West proves more politically savvy than she is—while Lois bores voters with detailed plans to improve the city, Mayor West uses glittering generalities and statements completely unrelated to his questions. Realizing (through Brian) that it would be hopeless otherwise, Lois then resorts to similar generalities, dropping controversial terms such as “Jesus” and “terrorists” in meaningless ways. She also answers questions about her policy plans only by saying “9/11.” She eventually gains the support of the populace and wins the election. (source)

You would think that somebody would tell the White House that this tactic has jumped the shark.

Apparently, Michael Mukasey didn’t get the memo… or more likely in this administration, nobody wrote the memo.

Arts Technica reports:

Five sentences into a speech on Friday at the Tech Museum of Innovation in San Jose, Attorney General Michael Mukasey was already waxing eloquent about how technology could help an “international terrorist looking to advance a murderous plot.” (source)

I have argued that Piracy might actually contribute to cultural enrichment. See Can you Digg It???. Nevertheless, I am willing to have my position challenged. I’m friendly to those who claim that piracy is wrong, evil, stealing, nasty, brutish, etc… And no two ways about it, piracy is illegal. I am 100% willing to lose the argument that piracy is a social good.

Nevertheless, all I can say to those who want to use the terrorism boogieman in this debate is summed up right here.

Promote the Progress…. Do I.P. Laws Hurt Poor Countries?

August 1, 2007

Here is an interesting take on Intellectual Property.

August 01, 2007 (LBO) – Developing countries Sri Lanka must be provided policy space in areas like intellectual property and get a comparative advantage in world markets, academics say.

“There is a great divide between the rich world and the poor world. We can see astonishing wealth being enjoyed by some countries [while] billions of people experience enormous poverty,” Tony Anghie, professor of law in the University of Utah says.

The rich world was able come to its current position by amassing wealth, making use of relaxed intellectual property laws and the protection that was given to industries while they were in the developing stage, he told an international trade law conference organized by the Sri Lanka Law College.


Not exactly on point, but here is an earlier post in support of piracy for cultural reasons.