Double play: Tyson defeats TM and false advertising claims

Posted on May 12, 2016 by rtushnet
Parks, LLC v. Tyson Foods, Inc., No. 15-cv-00946 (E.D. Pa.
May 10, 2016)
 
This case involves a trademark and false advertising
dispute. Previous
ruling denying an injunction. Parks claimed to own “Parks” for sausages and
other foods. Tyson owns the “Ball Park” trademark for hot dogs; it launched a
new line of “super-premium” frankfurters under the name “Park’s Finest.” Here,
the court grants summary judgment to Tyson and illustrates the caution that a (putative) trademark owner who sues puts its own rights at risk.
 
False advertising: the court reaffirmed its conclusion that
Parks’s allegations didn’t relate to the “nature, characteristics, qualities,
or geographic origin” of the Park’s Finest product, and thus couldn’t properly
be brought under §43(a)(1)(B); §43(a)(1)(A) was the proper home of a false
association claim, which is a trademark claim. “Parks is not contending that Defendants
have misrepresented the nature, characteristics, or qualities of their new line
of frankfurters; its claim is that the name ‘Park’s Finest’ is ‘likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation,
connection, . . . association . . . [or] origin’ of the product.” A
§43(a)(1)(B) claim has to misrepresent either geographic origin or the characteristics
of the good itself, such as its properties or capabilities. Citations: Kehoe
Component Sales Inc. v. Best Lighting Prods., Inc., 796 F.3d 576, 590 (6th Cir.
2015) (quoting Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1144 (9th
Cir. 2008)); see Forschner Grp., Inc. v. Arrow Trading Co. Inc., 30 F.3d 348,
357 (2d Cir. 1994) (rejecting a claim that use of the phrase “Swiss Army knife”
to describe “an inexpensive and shoddy multifunction pocketknife manufactured
in China” constituted false advertising because the representation did not
relate to either the geographic origin or the quality of the product). Note the
inconsistency with the Fourth Circuit’s recent Belmora holding.
 

Use of “Park’s Finest”
 
could deceive consumers only if it
led them to believe that the product was associated with Parks. That could
happen only if the word “Parks” “identif[ies] and distinguish[es]” Parks’s
products “from those manufactured and sold by others”—in other words, only if
the word “Parks” constitutes a protectable trademark. Because Parks’s claim
rises or falls based on whether it is able to establish that “Parks” functions
as a trademark in the minds of consumers, the proper analytical framework in
which to assess this claim is the law of trademarks.
 
Even assuming that §43(a)(1)(B) applied, Parks would still
lose. The statement “Park’s Finest” wasn’t literally false. At the very least,
it could be a reference to the brand “Ball Park,” and was thus ambiguous. After
all, “Ball Park” was superimposed on “Park’s Finest” on the packaging, and both
phrases were used together in radio and TV ads: “Park’s Finest from Ball Park.”
Thus, even a consumer who knew the Parks brand wouldn’t “inevitably” perceive a
reference to Parks.
 
Tyson’s intent was irrelevant: what mattered was the message
in its context. “‘A determination of literal falsity rests on an analysis of
the message in context,’ not on the message the speaker intended to convey or
on survey evidence of what consumers may believe the message to mean.” Common
sense and linguistics were enough to establish that “Park’s Finest” could be
understood as a reference to the Ball Park brand. Plus, there was in fact
evidence that “Park’s Finest” was intended to interact with the meaning of Ball
Park, from Tyson’s market research firm, which concluded that “[t]he word
‘Park’ evoked feelings of the baseball park experience that is strongly
associated with hot dogs,” and the name “linked strongly to the Ball Park brand
name.”
 
Nor was the term misleading. Tyson presented a survey
showing that only one in 200 people mistakenly believed that Park’s Finest
originated with Parks. Parks produced a survey designed to show false
advertising and trademark infringement, but it didn’t follow the proper pattern
for a false advertising survey. It first should have asked what messages the
consumer got and then asked consumers who received a relevant message
“comprehension” questions to figure out what they thought the message meant.
 
Parks’s survey showed each subject five product images,
including (in the test group) pictures of a Parks breakfast sausage package, a
Park’s Finest package, and three other unrelated sausage and hot dog products,
before asking whether the participant believed that two or more of those
products were “from the same company or are affiliated or connected,” with
followups as necessary.  The respondents
who perceived a connection between Parks and Park’s Finest essentially all thought
it was because of name similarity, but this survey “sheds no light on what
message a consumer receives when they encounter the Park’s Finest packaging or,
more importantly, whether the consumer would receive the false message that the
product originated with, or was affiliated with, Parks.”  A respondent who didn’t receive any message
about origin from the Park’s Finest product standing alone could simply have
noticed that the word “Park” appeared in both images.  Such respondents should have been filtered
out for false advertising purposes.
 
Another flaw in the survey was that it assumed that “Parks”
had secondary meaning among the consumers of Park’s Finest.  “A consumer who is not familiar with the
“Parks” name could not be deceived by the ‘Park’s Finest’ name, even if that
consumer failed to comprehend that the product is part of the Ball Park family.”  The survey method allowed respondents to
identify a connection even if they’d never heard of Parks.  “Outside of the survey environment, there
would be no risk that this person would receive a false message from the Park’s
Finest packaging.”  The fact that this
claim turned on secondary meaning further reinforced that what was at issue was
a trademark claim, not a false advertising claim. 
 
Finally, the survey didn’t target the appropriate
universe.  Participants had to live in
one of approximately two hundred ZIP codes in the country that, according to
Parks, correspond to the locations of stores that sell “Parks”-branded
products.  This attempt to survey
consumers of Parks’s products might not be representative of whether a
substantial portion of the intended audience for Park’s Finest would be deceived.
 
The remaining evidence wasn’t enough to allow a reasonable
factfinder to conclude that a substantial portion of the target audience would
be likely to be deceived, even though Tyson’s survey wasn’t without flaws of
its own.  Parks cited reports by a
licensee, Dietz & Watson, that three consumers who contacted Dietz &
Watson after the launch of Park’s Finest product appeared to be confused about
the relationship of the Park’s Finest product to Dietz & Watson’s
“Parks”-branded products. Three consumers’ reaction was insufficient to be
extrapolated to likely confusion among a substantial number of consumers.  Nor was the testimony of one of Parks’s
co-owners that he’d been personally approached by personal friends who
mistakenly believed that Park’s Finest product came from Parks. These “anecdotal”
instances of confusion were also insufficient, both because of their small
number and because the friends of one of the owners weren’t likely to represent
average consumers.
 
Tyson also won summary judgment on the trademark
infringement claim because Parks couldn’t show secondary meaning in the Parks
name.  Its former federal registrations
expired between 2003 and 2011; Parks in context was clearly a surname,
requiring a showing of secondary meaning for protection (even though in other
context, like “Ball Park’s,” it wouldn’t be a surname). 
 
While the length of sales and exclusivity supported a
finding of secondary meaning, Parks failed to quantify how well the name was
known before its present owners purchased it out of bankruptcy.  The court pointed to minimal
advertising—Parks didn’t sell products directly, but licensed its marks to two
entities, one of which only used the marks in grocery store circulars and at
six “food shows” per year and the other of which sold Parks-branded products
predominantly to the US military. 
Likewise, company size and sales numbers didn’t establish secondary
meaning; Parks was “a very small company,” according to Dietz & Watson,
with its sales of Parks products about $5.5 million per year from 2008 to 2013,
with nearly all of those sales coming from the Eastern United States region
where Parks claimed to have secondary meaning. 
This was no more than 1.3% of the breakfast sausage market and less than
1% of the dinner sausage market in the Northeast.
 
No reasonable factfinder could conclude that Tyson copied
the Parks name.  Though a trademark
search revealed the expired registration, the search was itself evidence of
independent creation, since it was commissioned once the name was on the
table.  Nor was Parks’s survey probative
of secondary meaning.  Whether a survey
that shows likely confusion shows secondary meaning depends on survey format:
if respondents identify the plaintiff after being presented with nothing more
than the defendant’s accused product, that’s good evidence of secondary
meaning, but Parks’s survey was quite different.  All that Parks had was the “handful” of
alleged instances of confusion, and given that Tysons had sold “many millions
of units” of their Park’s Finest product to “[m]illions of consumers,” “reports
of only a few actual instances of confusion cast substantial doubt on Parks’s
claim of secondary meaning.”

from Blogger http://ift.tt/23KMkH9

Posted in Uncategorized | Tagged , | Leave a comment

Reading list: Choreographing Copyright

Posted on May 11, 2016 by rtushnet

Anthea Kraut, Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance: Fascinating study of the complexities of claiming rights in a world in which asserting property rights is a measure of one’s humanity—and in which white women have often succeeded in doing so before men or women of color, as part of their fight against the objectification of the sexualized (and raced) female body but also as a result of an ability to rely on the privileges of whiteness. For example, white female dancer/choreographers routinely argued that their inspirations and antecedents were not really artistic and didn’t diminish the originality of their new creations because of the foreign origins and primitiveness of those earlier dances. Copyright claims signified artistic merit, desexualization, possessive individuality—all things that women had to fight to get.

 

African-American male tap dancers also claimed rights, both formally and informally, in a context in which “stealing” steps was sometimes ok and sometimes not. (Some of Kraut’s accounts of physical fights between black dancers sound like the fights among stand-up comics recounted by Chris Sprigman & Dotan Oliar.) “Stealing” steps is fascinating not just because it was sometimes tolerated and sometimes resisted, but also because it “contest[s] the idea that live performance, because of its ephemerality, cannot be replicated.” As in other studies of creativity without law, many of the sources Kraut cites indicated that copying steps was okay as long as the thief improved upon them, or at least put his own stamp on them. Attribution and recognition for “trademark” moves were also important to at least some of the dancers, although whether this was a second-best solution when ownership was impossible isn’t clear.

The rise of choreographic copyright claims, Kraut argues, coincided with the decline of tap, which faltered for many reasons, one of which was the Golden Age of the Broadway musical, which swallowed up elements of what had been vaudeville. In fact, the “ballet style” popularized by Agnes de Mille incorporated elements of tap, but this wasn’t officially acknowledged. The public recognized white female choreographers like de Mille as innovators for using improvisation and other techniques; at the same time, their authorship continued the pattern in which African-Americans wouldn’t be recognized as authors. “Integration” of dance into theater occurred only under the control of the white auteur. Whiteness emerges as, among other things, the privilege to choose different aesthetics and have them deemed original by others in power.

De Mille stumped heavily for recognizing choreography as copyrightable, but only by encoding the same disparagement of the popular (that is, usually, dances made popular by African-Americans)—of course, choreographic copyright’s proponents said, social dances and ordinary dance routines couldn’t be protected. (Faith Dane’s unsuccessful lawsuit for rights in her contribution to the musical Gypsy stands out as a prequel to Garcia v. Google; the court denied the authorial nature of Dane’s contribution of a stripperesque act.)

The book ends by considering Beyonce’s appropriation of a white Belgian choreographer’s work, which Kraut considers to be reversing the “racialized logic of property that helped underwrite the development of choreographic copyright in the United States.” Beyonce treated her work as just another input available for the taking, not as high art off-limits to the popular. Then, a Vietnamese-American boy recreated Beyonce’s choreography in a video that Beyonce endorsed—even though, by hypothesis, it wasn’t exactly her choreography; where were the Belgian choreographer De Keersmaeker’s rights in this? Through Beyonce, De Keersmaeker’s work became memified, but without any reference back to her—in a reversal of the ordinary racial logics of dance.

 

Kraut argues that choreographic copyright can “never completely deliver on its promise of averting objectification” by separating the dancer from the dance and allowing only the latter to be owned. Because dance is embodied, the line between the dance-maker and the owned dance can never be completely policed. I can’t do justice to the detailed and engaging story in a short review, but anyone interested in IP should take a look.

from Blogger http://ift.tt/1X1sMhs

Posted in Uncategorized | Tagged , | Leave a comment

There’s no cushioning this blow: Comparative advertising is copyright fair use

Posted on May 11, 2016 by rtushnet
Ashley Furniture Industries, Inc. v. American Signature,
Inc., 2014 WL 11320708, No. 11–cv–427 (S.D. Ohio June 25, 2014)
 
This 2014 case just showed up in my Westclip search and is
worth noting for adding to the small but consistent body of case law holding
that comparative advertising is a recognized category of copyright fair use.  Defendant Value City, a furniture seller that
competed with Ashley, ran various web and email ads, and used handouts/newspaper
inserts, comparing its products to those of Ashley by using Ashley’s own photos
of its furniture, taken from Ashley’s website, next to photos of Value City’s
furniture.  Value City it also used a
point of sale display containing a printout from Ashley’s website to tout the
comparative virtues of the furniture physically present in the Value City
stores.
Point of sale display with Ashley printout

Web/email ad with Ashley photo
In a deeply anticompetitive suit, Ashley sued for copyright
infringement (and unfair competition/trademark infringement, not addressed
here), arguing among other things that the price comparisons were
untrue/misleading; that the products weren’t truly comparable because of Ashley’s
higher quality; and that consumers were misled into thinking that Value City was
selling Ashley-made furniture, in part because the only brand name in the ads
was Ashley’s.  Initially, Ashley sued (without
copyright claims) in Chicago, but the judge expressed skepticism about the claims
and Ashley dismissed the Chicago suit without prejudice.  It then registered its copyrights in the
product photos used by Value City and sued again, first only for copyright
infringement, then re-adding the additional claims.
 
Ashley initially argued that Value City’s use couldn’t be
fair because its comparative ads were false and deceptive, making the purpose
and character of the use wrongful.  Dastar, however, cautions against
grafting Lanham Act principles into copyright law, creating a mutant.  Although courts have referred to deception
when addressing fair use in copyright cases, Sony Computer Entm’nt Am. v.
Bleem, 214 F.3d 1022, 1027 (9th Cir.2000); Triangle Publ’ns, Inc. v.
Knight–Ridder Newspapers, Inc., 626 F.2d 1171, 1176 n.13 (5th Cir.1980), “it
would be improper to materially alter the four-factor test by creating a
dispositive, threshold inquiry for falsity and deception.”
 
Factor one: courts have held that truthful comparative
advertising is in the public interest, even though it’s commercial.  The court here reasoned that “when
comparative advertising is truthful and not a passing off of the copyrighted
work, it serves the public interest and ameliorates the negative effect of
commercial use on a finding of fair use,” although Bleem and Triangle
treated this factor somewhat differently—Bleem
actually allowed the comparative nature of the advertising to favor a finding of fair use.  As for truthfulness: Value City didn’t
represent to consumers that the photos of Ashley’s furniture were Value City’s,
and even included Ashley’s trademarks with some photos, indicating that there
was no attempt to pass the photos off as having been created by Value City.
 
For purposes of a copyright claim, the only relevant passing
off would be of the copyrighted works.  “Very
simply, copyright law protects Ashley’s photographs, not Ashley’s interest in
selling the sofas depicted in the photos. As such, passing off in this context
would entail Value City’s sale of copies of Ashley’s photographs as its own,
which did not occur.”  Both Bleem and Triangle involved comparisons of copyrightable works that were the
underlying products, not separate, underlying products.  “Applying Lanham Act principles [relevant to
the underlying furniture] to evaluate Ashley’s copyright claim would run afoul
of the Supreme Court’s admonition against doing so in Dastar.” Thus, “allegations that Value City’s comparative
advertisements did not disclose differences in the quality of the furniture,
contained inaccuracies as to pricing, and led some consumers to believe that
Value City was selling Ashley sofas are actionable, if at all, under the Lanham
Act, not the Copyright Act.”
 
Thus, “the comparative nature of Value City’s
advertisements, which provided some benefit to consumers, reduces or negates
the impact of commercial use on the first statutory factor.”  Further, the use of Ashley’s photos as
components of comparative ads was transformative.  The comparative ads had a different purpose
than the original images: they contained an invitation to compare.  By contrast, if the defendant used only the
plaintiff’s images to claim that it could sell the underlying product, that
would be use “for precisely the same purpose as the plaintiff.”  This transformativeness made the first factor
neutral.
 
Factor two: the photos had both factual and creative
elements, weighing “modestly” against fair use. 
[This seems to contradict the relevance of transformativeness to other
factors, but oh well.]
 
Factor three: Ashley argued that Value City could’ve easily
created comparative ads without using Ashley’s photos at all.  However, the court agreed with Value City that
using the photos in their entirety was fair “because the photos were created to
depict Ashley’s furniture in the best possible light. Further, use of anything
less than the full images would not have given consumers a complete depiction
of the items of furniture for comparison.” 
Thus, factor three didn’t weigh against fair use.
 
Factor four: There was no market for these photos other than
Ashley itself. “Ashley sells furniture, not photographs of furniture.”  Though Ashley argued that the photos had
value for its independent dealers, it provided the photos to its dealers at no
cost, and any diminution in their value, or the value of Ashley’s furniture,
through the photos’ use in comparative advertising was not the kind of harm copyright
cares about.
 
If you’re following along, factor one is supposedly neutral,
two is slightly negative, three is neutral, and four “weighs substantially in
favor of a finding of fair use” because there’s just no market harm. “The
significance of the fourth factor cannot be overstated. The limited monopoly
copyright law grants to the creators of original works provides a concrete
incentive through access to the relevant market. It follows that if no market
or potential market exists for the original, then another’s use of the images
does not harm the copyright holder’s interests or inhibit the incentive to
produce original creative works.”
 

from Blogger http://ift.tt/1rVCQgc

Posted in Uncategorized | Tagged , , , | 2 Comments

Incarnadine: Pom’s FTCA violation could’ve given it unclean hands against Coca-Cola

Posted on May 6, 2016 by rtushnet
POM Wonderful LLC v. Coca Cola Co., No. CV 08-06237, 2016 WL
2587994 (C.D. Cal. Feb. 19, 2016)
 
After a trip to the Supreme Court, Pom’s false advertising
case against Coca-Cola ended with a verdict in favor of Coca-Cola; here, the
judge rejected Pom’s attempt to get rid of Coca-Cola’s unclean hands defense,
in reasoning that may be of broader interest. 
As you may recall, Pom sued Coca-Cola for selling a “Pomegranate
Blueberry Flavored 100% Juice Blend” with very, very little pomegranate or
blueberry juice in it.  Initially, Pom
alleged that “[a] key element of P[om’s] marketing campaign has been its
concentration on the health benefits associated with pomegranates and
pomegranate juice….” According to Pom, this “investment of millions of
dollars to research and promote the nutritional qualities and health benefits
associated with pomegranate juice” enabled Pom to “largely create[ ] the
burgeoning market for genuine pomegranate juice that exists today.”  The complaint accused Coca-Cola of cashing in
on the Pom-created consumer association of pomegranate juice with nutritional
benefits, misleading consumers into believing that they were getting “all
natural pomegranate blueberry juice with all of its associated health
benefits[] for a lower price, when in fact they are getting a very different
product primarily containing apple juice and grape juice.”
 
Coca-Cola asserted the defense of unclean hands, not only
from Pom’s use of other juices in its “Pomegranate Blueberry 100% Juice” and
its use of terms suggesting that its juices were fresh-squeezed rather than
from concentrate, but also from Pom’s unsupported claims of health
benefits.  After the DC Circuit largely
upheld the FTC’s ruling against Pom, Pom sought to amend its complaint to
remove allegations regarding the purported health benefits of pomegranate juice
and the importance of Pom’s health claims in creating consumer demand for its
products.  The court denied leave to
amend for lack of good cause shown.
 
Unclean hands is an equitable defense that bars claims for
money damages as well as for equitable relief. 
The defendant must show by clear and convincing evidence (1) “that the
plaintiff’s conduct is inequitable;” and (2) “that the conduct relates to the
subject matter of [the plaintiff’s] claims.” Although “precise similarity”
between the plaintiff’s inequitable conduct and the plaintiff’s claims is not
required, the misconduct “must be ‘relative to the matter in which [the
plaintiff] seeks relief.’ ” Thus, “the relevant inquiry is ‘not [whether] the
plaintiff’s hands are dirty, but [whether] [s]he dirtied them in acquiring the
right [s]he now asserts, or [whether] the manner of dirtying renders
inequitable the assertion of such rights against the defendants.’ ” Moreover,
even after both prongs are satisfied, the factfinder must balance the parties’
wrongdoing.  Nor should the unclean hands
defense be used to harm the public interest.
 
Pom argued that the misconduct identified by Coca-Cola
wasn’t directly related to the Lanham Act claim of deception about juice
content, and therefore couldn’t support an unclean hands defense.  Two previous cases addressed this issue with
respect to Pom.  One case found that
“from concentrate”-related claims weren’t directly related to Pom’s juice
composition false advertising claims.  However,
claims that Pom’s products contained undisclosed trace amounts of other juices
weren’t too unrelated to Pom’s false advertising claims to support an unclean
hands defense.  Another case interpreted
unclean hands more broadly, allowing concentrate-related claims to stay in.  Neither case decided anything about Pom’s
health-related statements.
 
Considering the standard to be whether the plaintiff dirtied
its hands in acquiring the right it now asserted, health-related claims were
sufficiently related.  Relation, not
“direct relation,” was required, but even a direct relation requirement was
satisfied, because Pom’s false advertising claims were premised on the
perceived health benefits of pomegranate juice as compared to other fruit
juices.  Pom alleged that it was Pom’s
health claims that created the demand for pomegranate juice, and thus consumer
desire for 100% pomegranate juice.  Pom
tried to distinguish general “health benefits” of pomegranate juice from
disease treatment/risk reduction claims, but Pom’s claims were not so
limited—Pom’s ads claimed specific benefits relating to heart disease, prostate
cancer, and erectile dysfunction.  Pom’s
damages expert also opined that Pom’s publications of studies touting specific
benefits of pomegranates made those fruits and their juice “must have” products
for certain consumers.
 
Under that analysis, Pom’s misconduct clearly related
directly to the present issue.  Pom
alleged that consumers were confused into thinking they were getting healthy
pomegranate-blueberry juice when they were really mostly getting “less healthy”
apple and grape juices.  Coca-Cola
responded that the health benefits were unsubstantiated; this was directly
related to the conduct Pom alleged had harmed it.
 
Pom then argued that its conduct wasn’t egregious enough to
warrant application of this “disfavored” defense, and that Coca-Cola failed to
show actual falsity as opposed to mere lack of substantiation.  “Neither Supreme Court nor Ninth Circuit
precedent requires that defendants prove that a plaintiff’s conduct was ‘egregious;’
if by ‘egregious,’ POM means that Coca–Cola must prove that POM’s health claims
were literally false.”  A willful
inequitable act is enough.
 
However, the party asserting the defense of unclean hands
must ultimately prove by clear and convincing evidence “wrongfulness,
willfulness, bad faith, or gross negligence” on the part of the plaintiff.  Coca-Cola presented enough evidence to avoid
summary judgment on this point. 
Coca-Cola pointed to the FTC’s finding of an FTCA violation.  Pom argued that this wasn’t sufficient
because the FTC hadn’t shown actual falsity, as a Lanham Act plaintiff would
have to.  “[N]either the Ninth Circuit
nor any other authority located by the Court requires that a defendant prove
that the plaintiff violated the same law or statute that it has accused the
defendant of violating.”  Rather, the
inequitable conduct must merely be sufficiently related to the subject matter
of the plaintiff’s claims.
 
Further, “[w]ell-accepted general principles of equity
support [the] contention that a statutory violation gives a party unclean
hands.” Thus, “Coca–Cola need only prove that POM engaged in deceitful conduct
to acquire the business and market share it alleges has been lost to
Coca–Cola.”  The ALJ’s finding that Pom’s
ads made deceptive claims about the health benefits of pomegranate juice was
sufficient to create a genuine issue of material fact about whether Pom engaged
in deceitful conduct in acquiring its customer base. Coca–Cola wasn’t alleging
a violation of the FTCA on its own behalf, but instead offered Pom’s statutory
violation as evidence that POM engaged in inequitable conduct. 
 
Pom also argued that the court couldn’t use the FTC’s
proceeding to prove Pom’s misconduct because a court “may not take judicial
notice of proceedings or records in another case so as to supply, without
formal introduction of evidence, facts essential to support a contention in a
case then before it.”  However, both the
ALJ’s Initial Decision and the FTC Opinion were admissible under Federal Rule
of Evidence 201(b) and Federal Rule of Evidence 803(8)(A)(iii). Findings about
what Pom’s claims were, whether they were deceptive due to inadequate
substantiation, and whether they were material were all findings of fact
subject to judicial notice.
 
Even without the FTC’s rulings, the court would still find a
genuine issue of fact on inequitable conduct, given Coca-Cola’s evidence that
Pom knew that the studies it advertised, and related studies, reached
“inconclusive, statistically insignificant, or even negative results.” 
 
The court did grant summary judgment to Pom on the “from
concentrate” aspect of the unclean hands defense; Coca-Cola didn’t offer
arguments on this point.  The court also
denied summary judgment as to the unclean hands defense based on whether Pom
misled consumers about the non-pomegranate juice content of its own juices,
because Pom didn’t argue the elements.

from Blogger http://ift.tt/1WOwzyI

Posted in Uncategorized | Tagged | Leave a comment

In which I sue Amazon again

Posted on May 5, 2016 by rtushnet

In FTC v. Amazon, the initial opinion was heavily, albeit badly, redacted.  With the able assistance of Paul Alan Levy from Public Citizen, MediaPost and I have moved to unseal the opinion and the documents on which it’s based, on the ground that the public’s First Amendment interest in access to judicial proceedings outweighs whatever embarrassment the facts might cause Amazon.  Here’s our motion to intervene and motion to unseal.

from Blogger http://ift.tt/1rXcuuT

Posted in Uncategorized | Tagged , , , | Leave a comment

Off the record: Use of name in instruction card doesn’t suggest endorsement

Posted on May 5, 2016 by rtushnet
Martin v. Wendy’s International, Inc., 2016 WL 1730648, No.
15 C 6998 (N.D. Ill. May 2, 2016)
 
Johannes Martin alleged that Wendy’s and Guinness World
Records violated §43(a) and his Illinois right of publicity by using his
identity in a 2013 promotion. The court dismissed the complaint. Martin alleged
that he holds the world record for consecutive kicks of a footbag: 63,326
consecutive kicks without letting it hit the ground.
 
In August-September 2013, Wendy’s and Guinness ran a
promotion in which every Kid’s Meal sold at Wendy’s restaurants included one of
six Guinness-themed toys, including footbags.   A card included with the footbag toy showed a
picture of two people playing footbag (not Martin) and listed three records
below the picture:
1. The most kicks of a footbag in
five minutes is 1,019.
2. The most people playing footbag
in a circle at one time is 946.
3. The most consecutive footbag
kicks in 10 minutes by a pair is 1,415. (
It also said: “How many times in a row can you kick this
footbag without it hitting the ground? Back in 1997, Ted Martin1 made his world
record of 63,326 kicks in a little less than nine hours!” Then it provided
instructions, and concluded with, “What kind of family record can you set?”
 

Promotional poster



Image from web announcement of promotion

Martin argued that defendants violated his rights by printing
“Guinness World Records” on each footbag; using the term “record-breaking toys”
in promotional materials; and referring to him by name in the instruction card.
 

Instruction card
The Illinois Right of Publicity Act prohibits the “use [of]
an individual’s identity for commercial purposes during the individual’s
lifetime without having obtained previous written consent.” “Commercial
purpose” means “the public use or holding out of an individual’s identity (i)
on or in connection with the offering for sale or sale of a product,
merchandise, goods, or services; (ii) for purposes of advertising or promoting
products, merchandise, goods, or services; or (iii) for the purpose of
fundraising.”
 
The court found the claim time-barred; Martin learned about
the promotion no later than September 19, 2013, when he first called Wendy’s to
complain.  While the district court in Toney v. L’Oreal applied a five-year
statute of limitations, using Illinois’ five-year statute of limitations for
“an injury done to property” and for “all civil actions not otherwise provided
for.”  However, later cases haven’t
followed Toney.  The Illinois Appellate Court has held that
the law codified and completely supplanted the common-law right of publicity,
and it had a one-year statute of limitations.  
 
Martin argued that fraudulent concealment tolled the statute
of limitations, because when he contacted Wendy’s, they told him to talk to
Guinness. “After a number of conversations, Guinness faxed him a letter, dated
February 19, 2014, in which it stated that it had ‘agreed to deal with any
dispute arising in relation to the usage of materials that formed part of the
promotion’ and took the position that ‘the use of [plaintiff’s] name and record
as part of the Wendy’s promotion was factual in nature and no person would be
led to believe that such usage constituted an endorsement….’”  Through counsel, Martin sent a letter to
Guinness on March 26, 2014, reiterating his claim.  Guinness’ outside counsel responded that his
claim was meritless.  Martin tried again
with Wendy’s but received no reply until July 2, 2015, when Wendy’s sent a
letter asking him to “direct all further correspondence to Guinness World
Records only.”  There was no plausible
claim of fraudulent concealment in these facts. Denial of liability doesn’t
toll the statute of limitations, nor do unanswered calls and letters.
 
Lanham Act claims: The court first determined that Lexmark applied to all of §43(a), though
it still called the issue “standing” in defiance of the late Justice Scalia’s
dearest hopes.  Section 43(a) requires
“an injury to a commercial interest in sales or business reputation proximately
caused by the defendant’s misrepresentation.” Proximate cause is “economic or
reputational injury flowing directly from the deception wrought by the
defendant’s advertising; and…that occurs when deception of consumers causes
them to withhold trade from the plaintiff.”
 
Martin alleged that he was “in the process of getting a
footbag mass produced,” and that the promotion “diluted the market” for his
future product. He claimed to have a “verbal agreement with a footbag
distribution company for 10% of the gross sales of a mass-produced footbag…
patterned after the record-breaking footbag that [he] constructed and used to
break the footbag world record.” He still needed to approve and probably modify
the final design.  His injury was one to
his “commercial interest in his reputation,” he alleged, because people have
“seen an inferior footbag, which the defendants presented as endorsed by” him,
and he seeks to recover for the “loss of endorsement revenue.”   The court found these (pro se) allegations
sufficient to demonstrate that Martin had a protectable commercial interest in
his reputation or identity/endorsement revenue.
 
However, injury to his future sales of a footbag wasn’t
cognizable, because any injury was purely speculative.  Martin wasn’t in the footbag business yet,
and his business plans were not very concrete. 
“He has what can only be described as a preliminary ‘prototype,’ but he
has not settled on a merchantable model of which to launch production, and he
has no more than a ‘verbal agreement’ to participate in bringing any product to
market at all.” Thus, Martin’s standing was based on his commercial interest in
his identity as a footbag world record holder.
 
False advertising: Defendants allegedly falsely advertised
by calling their footbags “record-breaking” even though no one had used those
footbags to break any records.  Moreover,
though there are many footbag world records, Martin alleged that his was the
most prominent, so any use of the term “record-breaking” in connection with a
footbag is a reference to him as the “footbag world record-holder.” He alleged
that he used a footbag of his own making to set the footbag world record, and so
the use of the term “record-breaking” misled consumers as to the qualities of
the footbag.
 
Defendants argued that “record-breaking” in this context was
mere puffery, and the court agreed.  “[I]t
is not plausible that any consumer would rely on the term ‘record-breaking’ as
a statement about the nature or quality of the footbag,” because it was “a
vague or exaggerated claim of superiority.” 
Moreover, Martin didn’t plausibly allege that any consumer would be
misled by the use of the “record-breaking” term to think that defendants’
footbags had anything to do with him. There was no reference to plaintiff
anywhere in the promotion’s website announcement, on the in-store display, or
on the Kid’s Meal bag. It wasn’t reasonable to infer that mere use of the term
“record-breaking” anywhere near a reference to a footbag was “somehow enough to
trigger a signifying chain” that led to him. 
 
To the extent that “record-breaking” meant anything, it
seemed obvious from the materials that it related to the “Kids v. Parents”
theme of the promotion, which encouraged kids and their parents to use the
Kid’s Meal toys to compete with each other to set family records, or to try to
break world records reported by Guinness. For example, the web announcement
touted adding “a little record-breaking competition to family dining…. [E]ach
toy provides fun challenges and a chance for parents and kids to outdo each
other for the title of family’s best.” 
It said that customers would receive “an exclusive guide to records that
families can try to break, so mom or dad or brother or sister can set the
family record.” “Record-breaking toys” was also used on the in-store display
and the promotion-themed Kid’s Meal bag, but both also used the heading “Kids
v. Parents.”  It was therefore not
plausibly a reference to Martin or any past record-breaking performance.
 
False endorsement: Martin claimed that using “Guinness World
Records” on a footbag and using his name in the instructional card offered
along with the footbag misled consumers as to his endorsement.  Just as “record-breaking” wasn’t a reference
to him, neither was putting the term “Guinness World Records” on a footbag a
reference to him.
 
While the instruction card did explicitly refer to him,
likely confusion wasn’t plausible. Mere commercial use of a person’s name
doesn’t violate the Lanham Act; the use must suggest endorsement or
sponsorship.  “But the card does no more
than state the consecutive kicks record and name plaintiff as the
record-holder. There is no language directly or indirectly suggesting that
plaintiff endorsed defendants’ products, nor do the plaintiff’s name and record
appear in a context that might, by its nature, plausibly mislead consumers to
believe that plaintiff endorsed defendants’ products.”  The court contrasts Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996),
quoting that court’s statement that “use of celebrity endorsements in
television commercials is so well established by commercial custom that a jury
might find an implied endorsement.”  The lack of misleadingness
was especially clear because the card was only available to consumers after they
bought the Kids’ Meal. 
 
Although the use was promotional “in some sense,” it was
more similar to cases in which a person’s name or image was used “on a product
rather than in advertising for a product,” rather than a typical false
endorsement case.  “[M]erely using
Princess Diana’s image on an item such as a commemorative plate was no more
likely to deceive consumers as to the source of the plate than Andy Warhol’s
use of a Campbell’s soup can or Coca-Cola bottle in his paintings was likely to
deceive consumers as to the source of those paintings or as to whether there
was any association between Warhol and those companies.” Likewise, “the mere
use of plaintiff’s name and record in the instructions for a game defendants
distributed to Wendy’s Kid’s Meal customers, as an illustrative example of how
to play the game and with the intent that the customers would play that game
with their families,” wasn’t plausibly likely to confuse consumers about
endorsement, source, or association with the toys.

from Blogger http://ift.tt/1SOSnZv

Posted in Uncategorized | Tagged , , | Leave a comment

CFP: IP + Race, at Boston College

Posted on May 4, 2016 by rtushnet

 

The IP + Race conference hosted by Boston College in April 2017, sponsored by  Anjali Vats, Deidre Keller, Amit Basole, and Jessica Silbey, is seeking participants.  They are expecting special musical guests for the conference as well – all IP and critical race related, of course.

 

 

from Blogger http://ift.tt/1X8sBRX

Posted in Uncategorized | Tagged , , , , | Leave a comment

Copyright Office 512 Roundtable: Open Mic

Posted on May 3, 2016 by rtushnet
Official description: Panelists from previous sessions and
observers may sign up at the roundtable to comment on topics discussed during
earlier panels or raise and discuss other pertinent issues.
 
David Green, NBC Universal: what should the Office do at the
end of the process? Don’t undertake a rewrite of 512. Everyone here would
change parts or a lot of it but even if the Office came back with a wonderful
rewrite, that would be a bloodbath. 
Trench warfare of congressional activity = little progress. Should be a
driver for progress through face to face discussions. Content owners and ISPs
have very different views, but we can still reach a compromise that’s
reasonable and fair and can involve w/time. 
Can and should encourage dialogue; have Congress members do the
same.  Isolated announcements from a
single internet company that it’s fixed the problem are bad. Also do best
practices, and education prominently displayed around uploads; descriptions of
fair use that everyone can use.
 
JC: how do you get people to the table?  Key stakeholders and smaller players?
 
Green: doesn’t get made in a big room like this.  Where stakeholders understand the problems
and goals: UCG principles.  With search:
“get together and see if you can make progress, then come back to me” (ideally
said by chair of Judiciary Committee) can put a thumb on the scales and
encourage cooperation.
 
Todd Dubler (sp?), Recording Academy: remarkable that you’ve
heard from entire creative community that they can’t use the system effectively
to keep their work from being infringed. 
Two worlds: work with us; they stick their fingers in their ears and
reject voluntary agreements.  Hoops for
issuing notice; very little that uploaders have to do to upload; education or
formality would be appropriate there. Finding some way to distinguish between
good notices and bad notices.  Find way
to designate STMs.   Original intent
behind red flag knowledge should be reinstated. Takedown should mean staydown:
when you’ve notified the service that it’s infringing and you have the tech to
track, you should be able to keep it from going back up.  Stacked URLs are clearly outside the intent
of the DMCA even if there are difficulties.
 
Joshua Lamel, Re:Create: Testifying in California. Re:Create
had nothing to do with the public comments, but they were from over 89,000
people, not people who were paid to testify but who chose to be here. Important
for California that these proceedings be livestreamed. This is something about
the future of the internet; people care passionately and can’t afford to be
here today. Consumer and artist community have interests.
 
Andrew Bridges: Continued massive confusion between 512(a)
and other types of ISPs.  ISPs and
sites—sites are (c) and (d), very different from (a) service providers. That
distinction kept getting eclipsed. 
Google and YT, both of which have prevailed in expensive litigation;
obsession w/them distorts (c) law in general. There is a wide variety of
service providers in any category that could be injured by policies developed
for Googles.  Discussion of good
actors/bad actors is demonization that is counterproductive. Focus should be on
behaviors, activities, legal criteria. “Come to the table” goes both
ways—refusal of many important and prominent (c) holders and agents to work
collaboratively w/ISPs, including reputable companies. UGC best practices—Veoh
was one of the participants, and it was sued into bankruptcy even as it won
major victories under DMCA; limitation of voluntary agreements.  Absence of citizen interest in voluntary
agreements—payment processor agreements weren’t made w/merchant participants;
sites get blackballed by ad networks until you make a record label happy. No
due process. That’s a problem w/voluntary agreements w/o public. Real abuse of
DMCA notice gamed for monetary purposes. Perfect 10 sends repeatedly bad
notices, faxing them late at night before a holiday weekend on plain paper with
no letterhead etc. Hoping that the ISP would lose the notices. Rightscorp sent
100s of 1000s of false notices w/o being able to determine that the account
holder assigned to an IP address was an infringer or even that there was an
infringer.  Finally, KTC’s Claggett
question about effect on legitimate content: I hope the focus isn’t on content
but lawful activity and free expression. Many policies have substantial effects
on legit activities and free expression, especially in 512(a), where
consequences of termination can be life-shattering.  There only way to get back on is to use rogue
services/fake—that’s counterproductive.
 
Allan Adler, AAP: Nature of commerce to come up w/new
business models, but whatever else you do, please don’t indulge blaming the
victim. Condescension, misdirection, anachronistic. May have had some
legitimacy in 2006, not 2016. House Judiciary hearing in 2013: rise of
innovative business models: content delivery models in the internet age. Rapid
but no impact on rampant online infringement. Look around us, how we and our
children are now accessing motion pictures and music—can’t doubt that new
business models have been a success. 
Even if we hadn’t, the suggestion to fight theft w/new business models
is pernicious. Individuals who earn their livings through art and plaintively
explained their plight b/c of inadequacies of 512, shouldn’t be told to invent
new business models along w/creative works simply to sustain a living by
creating art.
 
Will Buckley: Need for transparency in this process.  US Copyright Office received 90,000
submissions day before closing day. Generated by Fight for the Future,
mysteriously financed company that flooded your servers w/same message.  Disturbing: end run—we’re not really talking
about free speech. This is about property. Free speech that’s often used in
this discussion that takes it sideways. 
As far as false DMCA notices: there are very small percentages, less
than 5%, and very few have ever gone to court. That’s not a real issue. Yes,
ratcheted up over time, b/c of companies like Rightscorp, but I was at UCLA
last year w/ the House Judiciary Committee. Talked to Goodlatte about staydown:
he said we don’t want what happened w/SOPA to happen again. He meant a literal
cyberattack that scared the heck out of the people in Congress.  It’s important to have bloodbaths, rules and
laws that work.  [Rules and laws that
create bloodbaths?]
 
RT, OTW: Who’s the game-changing musician of our generation,
asked in the last panel? I offer you the queen, Beyonce, who just reinvented
the music video.  I offer you a man who
wrote a hip-hop musical about Alexander Hamilton: Lin-Manuel Miranda, who has
embraced online engagement, embraced online annotation of his lyrics on Genius,
which wouldn’t exist without 512; he embraced YouTube and Tumblr and gifs, you
might say NON-STOP.  We will continue to
have our geniuses; they will just be different.
 
Emphasize that, even accepting without question that piracy
is a problem, “do something” is not a policy. 
Nor is “staydown” b/c even a trivial change in a bit changes the
fingerprint of a simple staydown filter. 
The specific things suggested in the past two days—Content ID and Book
ID and Audible Magic—overblock and underblock, and the biggest users of Content
ID can’t say enough bad things about it—they suggest keyword blocking and other
measures to supplement it.   In Sony,
UMG, Warner’s comments, Content ID doesn’t work well, so they conclude that everyone
should have to use it. 
 
Worse, the proposed changes have no connection to
suppressing the worst offenders—those overseas and rogue sites that do nothing
to comply right now.  So you’ll be
crippling US-compliant sites and not even getting the benefit sought.
 
JC: what if it worked? 
[That is, it wasn’t only 60% effective?]
 
RT: Well, it works (at least at the 60% level, according to
the big companies) because it cost $50 million, which the rest of us can’t
afford to build.
 
JC: What if it worked and was free?
 
RT: The way it differs is by catching things even when they
differ.  Then it would catch a lot of
fair uses.  Testimony: catches 20 seconds
of quotation in a 40 minute film.  YT can
have that as a business model, and we do talk to Google about fair use, but as
a mandate it would be a huge free expression problem.
 
A separate problem with staydown—don’t assume that all works
are like studio films: Digital Media Licensing Ass’n at 5: “If images are
distributed by multiple representatives, or licensed on a non-exclusive basis,
it can be nearly impossible to distinguish an infringing use from a licensed
use.”  That’s ten times more true if the
ISP is in charge, meaning that properly licensed uses will be taken down both
to the detriment of the copyright owner and the licensed user.  Also: Yahoo’s comment recounts its experience
w/takedowns related to tobacco ads: some clearly fair, some maybe not: staydown
would prevent that kind of analysis.
 
Finally: You have not heard unanimity from the entire
creative community.  I represent 600,000
creators who feel very differently.  Ask
you to remember also the incredible transformative works community building
skills particularly among women and underrepresented minorities—I encourage you
to read our submission to PTO/NTIA
green paper, and see if you can do it without crying at some of the stories
of how transformative works transformed these women’s lives, their careers, and
their futures.
 
Pariser: What the © office might do: MPAA hopes © office
issues a report giving guidance on the proper interpretation of 512 to the
judiciary, similar to making available paper. 
These reports are enormously helpful to the judiciary in understanding
the proper way to interpret, even if they don’t always follow the
guidance.  For STMs, legislative history:  Committee would accept ad hoc groups as long
as the process was open, fair. Could mean that the door is open to anyone who
wants to come in; that would make it redundant w/earlier use of “open” to
describe standards bodies. Another way is that the record would be open.  In either case, © office could sponsor a
procedure that was both.
 
Sarah Hows: Spent 4 years training to be an actor and 1 year
trying to make it on the stage. What stood out to me is the difference b/t pro
creators and someone engaging in creative activities, which is amazing; not
everyone can be a pro artist.  It takes a
lot of investment to be a pro artist. 
It’s very different to try to make money than to make art. 
 
[Fortunately, transformative works communities can help
develop those very skills.]
 
Maria Schneider: my last recording won a Grammy, cost over $200,000,
took years to write the music; year in studio recording, editing, mixing,
preparing beautiful work to stand out. 
When I say it cost $200,000 I didn’t include my time writing music,
producing, $80,000 from my savings.  So
it’s pushing $300,000. When I find links to this on Google, that’s why I talk
about Google. I have embraced the internet like no artist has embraced the
internet; first artist to win Grammy from selling just on internet; worked
w/ArtistShare to document and know every fan; I put up video content
documenting throughout the year the making of the recording. When someone puts
my videos/scores up on Limetorrent and I can’t find a way to take it down, it
hurts me financially. In 1993, before anyone knew who I was, I sold 25,000
records; now that I have 5 Grammys I’ve sold 8000 copies of my current
album.  It’s so accepted that Spotify
offers no money b/c they’re competing with free.  Like offering me 45% of my own 401(k). This
is my asset, my life.

from Blogger http://ift.tt/1rk8LXf

Posted in Uncategorized | Tagged , , | Leave a comment

Copyright Office 512 Roundtable: Future of 512

Posted on May 3, 2016 by rtushnet
(In homage to Jonathan Zittrain, I am giving this panel the nickname, The Future of the Internet and How To Stop It)
 
Official description: General trends, including notice
volume and other relevant empirical data; scalability and future viability of
section 512 notice-and-takedown system; relevant technological developments;
impact of international models and norms; overall balance (or imbalance) of
system with respect to copyright owners, service providers, and consumers;
whether system is fulfilling Congress’ intended objectives; suggested
improvements, including “notice-and-staydown” and enhanced protections against
misuse of takedown process; interests of users and the general public; and
other pertinent issues.  
 
Jonathan Band, Amazon: the DMCA is a workable compromise;
512 balances rightsholders, service providers, users; no amendments are
necessary. It will continue to work, barring something unexpected.
 
Matthew Barblan, Center for the Protection of Intellectual
Property: Works really well for ISPs and horribly for creative community. If
this continues it won’t work really well for anyone. We’ve seen disruption of
creative industries. ISPs should keep in mind that the reason why the internet
is so popular is that it’s a great tool for disseminating creative content made
by our industries.  [Excuse me?]  Creative economy will be a shadow of what it
was.
 
William Buckley, FarePlay, Inc.: Heart of the problem is the
law is clearly broken; designed to make a simplified process for websites who
made an error in posting © material; could remove it w/o need for lawsuit.  Intention was for creators to have
streamlined way to get content removed. 
Problem was it was written improperly. Doesn’t refer to a specific piece
of content, leading to whack a mole situation, and that’s the genesis of these
takedown notices.  We have so many now
b/c the system doesn’t work.  Automated
notices = higher numbers. But the core is a broken law that fails to fulfill
its purpose.
 
Stephen Carlisle, Nova Southeastern University: My primary
gig is fair use.  Evaluating it for
professors, staff, library [poor professors!]. 
I’m hemmed in by what courts say it is now.  We see this push to expand where courts are
currently. Every fair use case has to be judged on its facts. No bright line
rules.  Authors’ Guild denial of
cert—mirror image copy is transformative; 
6th and 11th circuit say that a mirror image copy
isn’t transformative. [?  I note that
Univ. of Ga. didn’t argue that its copies were transformative.]  Berkeley study: 7-8% of notice were possible
fair uses—remixes, mashups, and covers. 
But covers need to be licensed, as do remixes.  I did a Westlaw search on remix and mashup
and couldn’t find a single case of a mashup or remix being found to be fair
use.  Fair use isn’t extended there by
courts and there’s a push further.  Guy
in California now has $1 million in funding to make a Star Trek movie w/no
permission from Paramount.
 
Alisa Coleman, ABKCO Music & Records: Broken: need
notice and staydown.
 
Andy Deutch, Internet Commerce Coalition: Imagine a world
w/o DMCA—stunted.  ISP groups that make
this possible could not exist w/o 512. 
Problems w/infringement exist, but creative community’s woes aren’t due
to 512 or even infringement; economic problems have affected all creative
trades. 512 encouraged enormous investment, new mechanisms for curbing infringement,
spread of broadband.
 
JC: the Q is, if we continue this way, what will we be
looking at? Is notice and takedown scaleable? 
[Is the United States scaleable? Interesting question in 1790; not a
particularly predictable one. Prediction is hard, especially about the
future.  I refuse to make predictions
five years out, much less twenty.]
 
Deutch: world of creators is variable.  They have different needs & problems.
Impossible to do everything for everyone. Same is true on the other side—10s of
thousands of designated agents. 
 
Sarah Feingold, Etsy, Inc.: Free speech—we need the internet
as it is, doing pretty well.
 
KTC: Some fear in your comments that you’d be subject to
increasing volume.  Are you concerned
that without change you might be inundated w/notices?
 
Feingold: Etsy has scaled, and so has our DMCA
function.  We’d scale and always treat it
as a floor and not a ceiling.
 
Greenberg: has the DMCA aged well and will continue to age
well? What I hear is that it’s perfect or that it’s a second-best and any
tinkering will upset parties.
 
Feingold: working as it is. Would want to see proposed
changes before further comment.
 
Kathy Garmezy, Directors Guild of America: Independent
directors—if DMCA continues, assume there are no protections and find alternative
ways to make up revenue.  Everybody we’ve
talked to has ended up turning away from 512 as unworkable.  Not a lawyer, but her sense that staydown
would make a huge difference for creators. Not all content on the internet is
equal. Pro content created by people who want to earn a living should be
treated differently versus other content.
 
Bruce Joseph, Wiley Rein LLP: Section 512(a), conduit
function—that both retrospectively and prospectively is working right and the
balance will continue to be right 20 years from now. Despite calls for change,
based on my preliminary review, there is very little if anything asking for
change in 512(a).  Led to massive
investment and it’s the only way we’ll continue to see massive investment by
service providers that create huge new opportunities in the economy as a whole
and content providers.  Commerce,
education, information, politics—it’s all there, and wouldn’t have happened
without 512(a). If any change is necessary, it’s time to eliminate the idea
that internet access could be terminated as a condition of the safe harbor.
 
Thomas Kennedy, American Society of Media Photographers:
Concerns w/512 going forward.  Our
members are approaching market failure, and adjustments are needed.  Tech changes have changed things for photogs;
small claims alternative would be step in the right direction.  Big problem is that DMCA isn’t contributing
to necessary dialog b/t OSPs and creative community, and the way they reap
enormous benefits from creation that aren’t shared.
 
David Korzenik, Miller Korzenik Sommers Rayman LLP largely
representing news organizations: Parallel to right to be forgotten in Europe—as
worry about privacy increases, takedown notices increase. Companies like Google
and other search operators are faced w/1000s of takedown requests to evaluate.
Even if they try to balance these, a lot of this “censorship” occurs outside
public view so we don’t know what’s lost. 512 is generally good, but shouldn’t
create presumptions against speakers, burdens against new forms of fair
use/conversation/interaction – may be untested in courts but need to be
assisted.  Good thing about 512 and
American law generally is that we favor new tech rather than taxing them as
they do in Europe. Continue in vein of Sony
Betamax and 512: no presumptions against legitimate speech.
 
Dina LaPolt, LaPolt Law, PC: No, it’s not sustainable.  We’re all miserable. Two separate communities
that desperately need each other and nobody’s listening. Fix things a
little.  Staydown.  Keep it down while we figure out in a small
claims type of way whether it’s supposed to be down.  ISP has responsibility to keep track of that
file. If someone makes a counterclaim, we should have more than 10 days to work
it out, during which it should stay down. Maybe 60 days. Why force my clients
to force a lawsuit against you, b/c they will? 
[He made me do it!] We could work it out in friendly arbitration to see
if the staydown will persist.  To figure
out whether it should be fair use before my clients make a case for stealing
doesn’t seem an amicable way to fix the system. [Accusations of stealing, OTOH,
are friendly-like.]
 
JC: are you suggesting that all other identical files should
be kept down too during this period of decisionmaking?
 
LaPolt: yes and no. Music community is not great
w/metadata.  I’m saying if I make a claim
and there’s a specific file, they should keep that metadata and notify me if
someone puts it back up.  Result:
coexistence for healthy community.
 
Michael Michaud, Channel Awesome, Inc.: My company makes
content on YT and has a website that attracts millions.  Staydown—but to put the burden onto websites
is the same burden, now on us.  Harms
small websites that don’t have resources. Viewers are the ones who determine
whether content succeeds.  YT has started
careers, and a lot of people rely on fair use to get out there, such as Justin
Bieber. This isn’t defended enough. There are lots of examples of abuse of
takedowns.  We had four notices last
year, all wrong.  We lost an entire month
of revenue b/c of a claim that had to stay down 10 days even though they
dropped they claim.  They can block you,
take your money, or block your monetization for 20 seconds of video in a 40
minute video.
 
JC: are you agreeing to those terms when you upload?
 
Michaud: YT doesn’t set these terms.
 
JC: but that’s not the law [it’s just what you seem to want
to turn into the law.]
 
Michaud: they can do a global block w/o even using the DMCA.
 
Christopher Mohr, Software and Information Industry
Association: If things stay the same, we are not calling at this time for
amendments to the statute. It is under strain. 
In the coming months, as court cases come down, there are areas that can
and should be clarified—see our comments. 
Our hope is that we can see greater growth in positives such as
voluntary agreements.
 
Mickey Osterreicher, National Press Photographers
Association: sides are talking past each other. Haves speak of reasonable
profits and cost of doing business; have-nots say corporate greed.  Pernicious theft of work.  One side says fair use is a defense, the
other says it’s a condition precedent. Creators big and small say
shortcomings/unintended consequences of 512 should be addressed.  Basis for © is promotion of progress of
science and useful arts, if 512 doesn’t help secure exclusive rights of authors
to allow them fair compensation, we may see the demise of useful and creative
works as they continue to be misappropriated. Turning blind eye to infringement
has created imbalance in online ecosystem. 
[This is why the Avengers movie is going to have such an unprecedentedly
small global take, I imagine.]
 
Janice Pilch, Rutgers University Libraries [comments are her
own, not views or official position of Rutgers or any library association]:
Absent legislative change, the situation will continue to deteriorate for
creative people benefiting from their own work. 
Since 1998, the internet has become something other than what Congress
intended—thrives on illegal commerce. Black market is bad; 512 rewards
disrespect for moral/material interests of others. Supported by safe harbors
and not open/democratic; closed system w/unfair advantage to itself. Needs to
change or society will be worse off. Social issues are as important as internet
itself.
 
Kevin Rupy USTelecom: $1.4 trillion investment in broadband
in the US. $78 billion in one year.  As
Joseph noted, that investment is in part based on 512(a).
 
Van Armen, Ass’n of Amer. Independent Music: From our
perspective, DMCA has problems.  What
happens if things don’t change? Our members are very concerned about control of
their works. They want a market for the fruits of their labor.  As we see things now, we’re afraid that if
things aren’t changed, there won’t be adequate compensation in the future.
 
June Besek, Kernochan Center for Law, Media and the Arts,
Columbia Law School: Fact is that 512 will not persist; there will be judicial
change even if there’s no legislative change. If past predicts future, that’s
concerning, b/c courts have often placed emphasis on allowing service providers
to flourish and grow, and less on rightsholders’ interests. Reading
representative list out of statute, defining red flag knowledge narrowly,
etc.  Service providers continue to base
businesses on infringement. 512(h) has limited effect b/c you have to file a
John Doe lawsuit. No liability even when their own contractors post; they have
to consider fair use before filing. Not all these decisions were bad, but
balance hasn’t been achieved. Shouldn’t assume that decisions will be
better/different if we go on the way we are. 
ISPs will continue to pay a lot of $ to respond to takedown notices, and
© owners will spend a lot of $ to file notices. 
And © owners will lose a lot of $ because materials will be up.  [#notallisps]
 
JC: you’re suggesting that narrow interpretations could be
avoided—how could courts reverse that trend? Is that likely?
 
Besek: doesn’t see SCt case in future; evolution could occur
over time.
 
KTC: what is the goal? 
Less piracy? More content in the world? 
What would be a measure of success under DMCA now or in future?
 
Band: look at the objectives in 512: thriving internet?  Do you have a thriving creative
environment?  Goes back to the facts that
Petricone cited. That’s what we should look at. 
The © Act isn’t about protecting particular business models, but about
promoting progress.
 
KI: if we decide those are the metrics, how do we measure
them?  Sheer number?  US compared to other countries?  Historically? What’s our benchmark?
 
Band: US and int’l success—all kinds of metrics, though some
things are more difficult to measure.  As
Feingold was saying, all of us are creating works all the time; the number of
photos created every day is over a billion. 
No Q re: absolute number.  Q of
quality—that’s more difficult and complicated. 
Doesn’t seem to be any shortage of high quality content either, and
there are distribution models—open access publishing, completely different
business model.
 
Barblan: if service providers were incentivized to do more
to remove a link, we could arrive at a place where most popular streaming
website in the world isn’t a substitute for music you’d have to buy. [He means
YT.] Encouraging the production of pro quality content that people can make a
living at as pro artists; this difference matters. If you go on YT and listen
to someone playing a cover, that’s entertaining but not the same as a pro
quality album that cost several hundred thousand dollars to record. Encourage
people to be able to make a living as artists. It’s tough to see how to measure
that; shouldn’t just measure amount of works out there. Overall ability of
pirated content—if we see #s like that continue to increase and anything is
available to free, we’ll see market disruptions that make it hard for people to
make a living.
 
Buckley: It’s about money. What’s the value of broadband
without content?  Band said there was no
proof that piracy cut revenue of record business 60% and photography and
literature.  In spirit of full
disclosure, I’ve circulated a petition that requests a staydown provision to go
along w/takedown. We’re not asking for a new law. Hollywood makes 30% fewer
movies than a decade ago, 60% fewer “nuanced” movies. Instead, event films
demand a premium price to go see films in HD and 3D. That’s one way film
industry had a successful year.  My
petition discusses author who filed 570 takedown notices for one book & one
site, and he was never able to succeed. Balancing compensation for artists w/
tremendous wealth generated for tech sector ot we’ll lose our rich heritage.
 
Carlisle: Promote progress—we should ask ourselves: is 512
promoting the progress of useful arts. Shrinking songwriters in Nashville.  We are killing an entire generation of
creative artists:  we’ll never hear b/c
we can’t sustain a living. I asked: who is the game changing musician of our
generation: Kurt Cobain, Jimi Hendrix, Prince. The best answer he had was
Eminem, 20 years old.  [LIN MANUEL
MIRANDA, anyone?]  I’ll take Prince over
Justin Bieber.
 
Greenberg: What makes income driven artists going forward?
 
Carlisle: shrinking revenue pool. Touring sold records, in
the old days.  Now records are loss
leaders for tours. Touring is very expensive.
 
Coleman: goals should be to protect copyright owners and
switch the current balance to favor songwriters etc.  W/o cover songs, the music publishing
industry wouldn’t exist. People want to make tribute versions whether on the
internet or a CD.  We need to protect
right to monetize cover versions.
 
Deutsh: Don’t overlook enormous new opportunities created
for artists.  Viral hits—make money and
earn a living in ways that could never have occurred in the pre internet era.
Even on the creative side, there are winners from the system that’s evolved.
Other industries have also had to roll with the punches, but by no means is the
internet the sole villain.
 
JC: are we evolving into a society w/o investment in up and
coming artists, b/c that’s been the model for a long time. We’re hearing
there’s not enough money in the current ecosystem to invest in many new
artists. Is that a social loss?
 
Deutsh: remains to be proved. Stock market capitalization of
these cos. remains high. They continue to be profitable. Can’t compare to
1980s, but then 1950s was different too. Big bands died. Change in what
consumers want to hear/watch is a feature of the American cultural landscape.
People who want and need to create will continue to come to the fore; many more
people are now doing that b/c they can get their works out to others.  Mixed future: large entertainment cos. and
music publishers, all providing capital and facilitating distribution.  Alongside, new artistse who become viral
sensations; that’s new and cumulative rather than subtractive.
 
Feingold: I don’t see desctruction of artistic communities;
I see the opposite, millions of sellers on Etsy with $293 million dollars of
sales, 80% of whom are women, many working from home—wouldn’t have brought
products to market without lower barriers to entry, enabled by DMCA. Use Etsy
to pay bills.
 
Joseph: SCt made clear that © exists to promote the progress
of science.  Golan v. Holder; refers
broadly to the creation and spread of knowledge and learning. Sen. Hatch said
the same thing.  SCt has emphasized that
the ultimate goal of © is the public interest, not the author’s private
interest. Sony teaches us that the
monopoly privileges are neither unlimited nor primarily designed to provide a
special private benefit; rather it’s a means to achieve an important public
purpose.  Inducing dissemination post-creation
is an appropriate means to promote science. 
Your goal at the Office is to consider what’s best for the public in
creation and spread of knowledge and learning. Those are the touchstones for
evaluating what you might do to the internet.
 
Kennedy: © is about the ability to focus and master craft,
serving the public interest. Reducing that capacity of artists and scientists
to have the ability to focus, you’re diminishing what the public can ultimately
get.
 
Korzenik: public interest is important; © systems around the
world balance interests of authors, distributors, and readers.  France is author driven.  Our system is distributor driven. People who
care about public interest in this country are librarians.  Everyone conveys sense that internet is place
of chaos and destruction. There’s another side in Europe, Russia, China—an
incredible tool for policing and social control and censorship. Whether
privately through notice and takedown or publicly. Internet reveals many
things—sexual abuse that existed but we now see; police abuse likewise; © abuse
that existed in the print world that we now know.  Be mindful of the power of this tool to
police; its controls need to be moderated so that new fair uses aren’t suppressed.
 
LaPolt: I don’t understand why my clients’ property should
be public interest.  There is a social
loss in the music community.  Until now,
the only companies that could put up risk money were record companies.  Publishers don’t give you money up
front.  But now record companies can’t
put up a new artist unless she gives up 25% of touring, sponsorships, etc.
That’s not sustainable. Simple fixes would enable us to get along.  Internet can be a valuable tool for some
independent artists, but we need to work together.
 
Mohr: In measuring success, there are two interests.  Interest in generating services, which has
succeeded. Another interest: purpose of copyright. Congress put copyright in to
unify state law; recognition of the benefits of an incentive for authors and
publishers to make useful things; public good coincides w/claims of
individuals. Eldred footnote: benefits of incentives of the profit motive.  It’s there where our membership sees the most
strain. We believe courts can sort that out, but 512 should restore incentives
lost through poorly considered decisions.
 
Osterreicher: We can all agree that images drive page
views.  Most of the photographers outside
(for Silver sentencing) don’t work for newspapers b/c there are fewer papers
w/smaller staffs. The only way to make a living is to go out and spend hours
waiting around for a few moments of chaos, trying to get a better picture than
others.  The only way they can then get $
is by licensing images. If there’s no way to protect licensing, at least get
them taken down when they’re misappropriated. If we’re all going to depend on
UGC—seeing is believing.  We’d like to
believe that news isn’t photoshopped. 
It’s a small microcosm of people that create images, but useful to show
how important it is to protect that work.
 
Pilch: Group of musicians was demonstrating outside
w/posters: takedown means staydown; Congress, fix the DMCA.  Goal should be that everyone flourishes, but
not based on theft, misappropriation, and involuntary exploitation, which
public policy has never endorsed—racketeering and trafficking in information. A
new form of oppression.  Not free speech.
Just economic abuse. Goal should be to end economic abuse and even out economic
rewards. Fewer takedown notices, fewer complaints, richer culture.
 
Van Armen: it’s in the public interest to motivate creators
to create new works. Imbalanced system w/no market = public is much
poorer.  If we were to adjust the DMCA
safe harbors, how do we know 20 years from now whether it was good? Whether
there are innovative digital services; we do need those. Some digital services
have been very good.  But we’re also
undermined, taking big hits. 
 
KTC: how do we develop a tweaked law or dialogue to see
these goals implemented?  We’ve heard
voluntary solutions; staydown; how other countries handle things but other
panels noted reduction in piracy given their new laws.
 
Besek: single most important thing would be
takedown/staydown.  Some objections are
well taken but there should be an opportunity to object if your content is
filtered out, just as it is w/notice and takedown. Could be different standards
for different classes of ISPs, at least for a certain period of time while
they’re a startup. Pessimistic about voluntary measures b/c there are business
models involving access to content, and b/c there are businesses that have good
faith but don’t see what’s in it for them even though it might help them to
reduce takedowns [which assumes that they get huge #s of takedowns].
 
Band: Amazon would oppose any statutory change. Voluntary
measures.  Deutsh: we live in a time of
rapid tech change; it’s stressful for everyone. We all have to reinvent
ourselves repeatedly.
 
Barblan: artists aren’t luddites; invested heavily in new
means of dissemination. When you make it easy to steal from them, reduce the $
they can use to develop new business models and new forms of art.  Some sort of staydown would be a really good
step in making it hard to steal from artists. 
Once a service provider is on notice that a work isn’t licensed, they
should bear the responsibility to avoid reappearance, whether through filtering
or changing the way content is uploaded. 
Incredibly technologically advanced industries can do autocomplete [um,
Google can do autocomplete—this is your scheduled reminder that Google is not
the internet!]—hard to believe they won’t be able to figure it out once you
shift the burden to them.
 
Buckley: w/o staydown, we don’t have an antipiracy law.
Grooveshark admitted in court that they had used the takedown provision as a
way to avoid prosecution.  Enabled them
to follow directions and repost. They had a server with a “Pez strategy.” Put
exact same piece of content over and over; they were caught b/c of internal
email sent to employees seeking songs. 
There should be penalties for false takedown claims. There has to be
recourse on both sides. No free pass to destroy someone else’s career. Has to
be balance.
 
Carlisle: speaking personally. If 512 worked, YT wouldn’t be
using it as a negotiating tactic.  You
take what we give you or we throw you into notice hell. Staydown levels the
playing field, so Spotify can’t compare its rates to YT.  Puts burden on policing the internet on the
YT and FB and others profiting from this content. It’s the only solution that
can work. Think if we didn’t have to process a billion notices a year—less bad
notices would be sent too.
 
Coleman: Urge you to think about innovation as a whole w/r/t
512.  We know what doesn’t work. We don’t
know what won’t work 5-10 years from now. No one would have thought we’d be
talking about it this way. Think about takedowns, staydowns, small claims, not
for the long term but perhaps for the short term. [I think this is perceptive
about our ability to predict.]
 
Deutch: it is in ISP’s interest to cooperate w/owners.  Those who thrive on infringement will
ultimately be caught—those who tried have lost. 
512 is not a shield, nor is Grooveshark typical of the 512 system.  No one says this is perfect, but changing
this would change the good balance Congress struck in 1998. © owners are the
best ones to ID material.
 
JC: once they’ve identified the content, assuming the
provider has access to fingerprint, why shouldn’t they screen for that.  They supply a hashtag [she means hash]—why
wouldn’t the ISP have duty to track that?
 
Deutch: Ultimately not their responsibility; Congress made
that decision.
 
JC: but after affirmative identification, ISP w/tech ability
should keep file down?
 
Deutch: it’s a big assumption, but they should talk about
it.
 
Feingold: staydown would be extraordinarily burdensome; also
I see so many abusive notices to squash free speech. Is the content still
infringing when it reappears? Those are technologically and legally difficult
questions.
 
KI: abusive notices: has Etsy received them?
 
Feingold: trying to take down competition, or someone is
saying something about them. I’ve seen takedown notices that should be
counternoticed.
 
Greenberg: are these free speech or unfair competition
issues?
 
Feingold: they’re both.
 
KTC: is the underlying content TM infringement or are people
trying to use TM improperly?
 
Feingold: using them together; both properly and improperly.
There’s no counternotice procedure. 
 
KTC: should there be TM DMCA?
 
Feingold: should be examined.
 
JC: do you have a repeat infringer policy? Could you share
it w/us? How does it work w/physical goods?
 
Feingold: we have human review; it’s very burdensome.  Nuts and bolts are confidential; we’ve seen
takedowns sent at 9 am, 10 am, 11 am and claim that therefore we have to
terminate the target’s account for repeat infringement.
 
KTC: Is it something unique to your particular atmosphere in
terms of abuse?  Are you seeing notices
from competitors b/c you have individual businesses in one website, who might
be incentivized to abuse the process that might not necessarily occur w/other
websites? [other websites that don’t host UGC?]
 
Feingold: we run the gamut—giant brands and people who were
best friends and then had a falling out and sent takedown notices against each
other.
 
Garmezy: staydown would make a huge difference.  Heard creators as collateral damage of
changing times; motion capture was created by directors, so we know the
internet is powerful, but creating is unique, special, ephemeral, and not
everyone can do it. Be guided by remembering creativity.
 
Van Armen: Small and medium sized businesses: it’s a real
burden to take something to federal court when a counternotification is
provided. For us, a big intervention that would help is small claims
process.  Standardized takedown notices
w/open standards would also reduce costs for small and medium sized businesses.
 
\
 

from Blogger http://ift.tt/1X7fPTB

Posted in Uncategorized | Tagged , , | Leave a comment

Copyright Office 512 Roundtable: Voluntary Measures and Industry Agreements

Posted on May 3, 2016 by rtushnet
Official description: Voluntary alternatives to and
modifications of statutory notice-and-takedown process; best practices;
collaborative efforts of content owners, service providers and others to address
online infringement, including availability of programs to smaller service
providers and creators; cooperation in identifying infringers; graduated
response programs to address infringement; efforts to delist or downgrade
infringing materials within online search results; participation of third-party
providers, such as advertisers and payment processors, in voluntary
arrangements; overall effectiveness of voluntary arrangements; educational
outreach; government role in encouraging private solutions; and other pertinent
issues.
 
Kimberly Isbell: Let’s start with voluntary measures that
are helpful.  If so, what are their
characteristics that could be replicated?
 
Jonathan Band, Library Copyright Alliance: Voluntary
measures taken by a payment processor: for a long time.  Victoria Espinel asked them to get together
for standards/best practices.  Cooperated
w/int’l anticounterfeiting coalition; working well.  The most significant feature: it was
developed by payment processors.  Came
together w/best practices; responsive to their needs but also to reach
consensus w/in the industry instead of trying to work across industries.
 
KI: how important was IPEC’s involvement? Necessary or not?
 
Band: Payment processors were all doing this already; it’s a
highly concentrated industry and there’s competitive pressure. Helpful to have
IPEC in the final steps but lots was b/c they were already doing it.
 
Troy Dow, Disney: Voluntary measures are a bright spot.  A number of them, in our comments w/MPAA.
Principles for UGC—has worked for setting standards. What allowed success was
that we had collaborative sessions; multilateral b/t creators, platform
providers.  Started by putting aside
difficult legal questions about what the law required and set a goal of UGC
environment promoting legitimate creation but also prevented infringement.  Then we tackled some problems.  Included tech solutions; included
understanding about © owners’ behavior. 
Included an agreement that this wasn’t just a one time set of principles
but an ongoing relationship.
 
KI: what circumstances encouraged the players to get
together?
 
Dow: Underlying framework of DMCA; everyone was unsure what
the law would say. Litigation was a potential route. Legislation was a
potential route. Prospect of losing a lawsuit on both sides brought the parties
together. 
 
KTC: does the legal framework remain sufficient to encourage
continued development of voluntary agreements?
 
Dow: many issues in yesterday’s panels have a lot to do
w/that. Narrow construction of DMCA shifts balance away from shared
responsibility to rightsholders; that does push away from environment of
cooperation.
 
Michael Petricone, Consumer Technology Association: Legit
services making it easy for consumers to do the right thing—piracy dropped.
British record industry: overall use of pirate sites had dropped a bunch; UK
predicts will continue. Spotify has been shown to reduce piracy where it
opens. 
 
KI: yet the content owners are telling us it’s still a
problem. Possibility: (1) not enough legit services; (2) legit services aren’t
enough; (3) we will never eradicate piracy.
 
Petricone: eradicating piracy online is impossible; the key
is to reduce that as far as you can. Voluntary measures and presenting users
w/wide variety of legit and appropriately priced content.  There are real numbers here and they show a
great success in decreasing piracy and increasing access to content.
 
KTC: do you think that on the content side, content owners
are focusing their approach on developing legit content, or is that still a
distribution challenge online?
 
Petricone: 1998, there was a period of transition, to be
expected for any new tech; increasingly embracing the internet.
 
Casey Rae, Future of Music Coalition: 512(i) encourages
this. 
 
KTC: why wasn’t it effective?
 
Rae: it really wasn’t tried. Rightsholders assumed they’d
pursue their rights as they had done previously.  Grokster: record labels were interested in
achieving favorable legal precedent. ISPs faced legit difficulty in identifying
works.  Things change.  Ongoing relationship: Credit card best
practices; ad exchange best practices; separate copyright notice system.  All came from different situations; gov’t has
role to create environment, but doesn’t need to legislate anything as long as
info is presented from rightsholders to ISPs. But we need to know accessibility
and affordability of tech for small & medium enterprises.  Need to continue to evaluate developing tech.
 
Maria Schneider, Musician: a young musician has 45 million
plays on Spotify; never gotten a check more than $60.  It is not working.  Troy’s solution: Disney found a way to come
to the table, but for musicians individually there are no solutions. Content ID
isn’t available to me.
 
Jennifer Pariser, Motion Picture Association of America:
Endorses Dow’s optimism about voluntary agreements as partial solutions.  All of them are flawed in that they only have
some players and they can only be somewhat effective. More successful = players
have incentive to come to table. They face liability if they don’t. Copyright
Alert system = ISPs enjoy immunity if they cooperate w/us in a piracy solution,
whereas other solutions, like domain name registries, have been more difficult
to work w/ b/c they don’t face liability.
 
KI: we’ve heard that the trend in the course is to interpret
safe harbors more broadly. Have you seen an effect on the prevalence of
voluntary initiatives?
 
Pariser: hard to say there’s a one to one correlation, but
for sure when great cases (for us) come out, ISPs have more enthusiasm for
voluntary initiatives. Hopefully BMG v. Cox will help the Copyright Alert
system, whereas limited liability for payment processors pulled in the other
direction.  Entities have their own
reasons to do things. Ad networks: they don’t want their clients associated
with garbage sites. But court decisions finding that an operator has no
liability are bad days for voluntary initiatives.  [And what makes you come to the table on good
days for you?]
 
JC: Cox is not in Copyright Alert system?
 
Pariser: yes.
 
KTC: what role do you see for gov’t?  Response to Petrichone?
 
Pariser: content industry has done more and more and more to
make content available. Windows are closing. 
Enormous amounts of content available legally, and yet piracy is huge,
b/c people still want something for nothing so we need more than licensing.
What gov’t can do: courts are different from © Office; the Office could
designate specific things as STMs. Part of the problem w/getting sites to adopt
STMs is that there’s no agreement on them. 
Sound of one hand clapping. If we say Audible Magic is a great solution
and get no buyin, it goes nowhere.
 
JC: Parsing definition of STM: what’s meant by the use of
“open, fair and voluntary”?
 
Pariser: something not like Content ID: available to the
public, perhaps at a price.
 
JC: licensable tech?
 
Pariser: yes—you can’t be too small or too big, as long as
you make the right kind of content.
 
Mary Rasenberger, Authors Guild: Voluntary measures are good
if they work; problem w/ones to date is that they don’t work for individual
creators.  Part of the problem is that
individual creators have been left out of best practices, voluntary measures,
industry agreements; don’t have ability to negotiate w/ISPs.  Authors are left with notice and takedown
& its shortcomings.  There is growing
book piracy. Complaints up 600% in the last 5 years; no affordable service for
authors to use. Examples w/Google’s Content Verification—you can’t do it as an
individual. Copyright Alert doesn’t work; 6 strikes is too much. Voluntary efforts
by advertisers aren’t working either—our authors have Google Alerts set up and
get dozens a day; they click and they get ads for sites they’ve just visited.
Individual complains to payment processors—your notice just gets lost; they
only want to deal w/ trusted senders. Individuals should be part of the
negotiation.  STM: the tech exists, and
if creators were part of that negotiation, there could be potential for great
relief.
 
JC: Scribd?
 
Rasenberger: it works, but it’s not readily available to
authors. We’d like to see industry adopt something like BookID on a wide basis,
including ISPs. In a way authors could readily avail themselves of. Most
creators simply lack the resources to spend on additional tech or to hire
services to assist them.
 
JC: why not available to individual authors?
 
Rasenberger: they’d have to be part of the service, which
they’re not. [I’m not sure that’s true.]
 
KTC: are you saying the fingerprints that filter is not
something that individual authors have participated in?
 
Rasenberger: yes, and then the ISP doesn’t want to filter.
They’ll take down in response to notice but not filter in advance.
 
Victoria Sheckler, Recording Industry Association of America:
Voluntary initiatives can be helpful, but everyone has to get in the game for
it to work. Varying degrees of success. Has to be in backdrop of working legal
system.  BPI’s reduction of piracy:
different legal regime, used differently, creating significant reason for
reduction in piracy not applicable here.
 
KTC: In terms of the difference, pirate sites?
 
Sheckler: our comment suggests court orders had significant
impact on piracy.
 
KI: are there particular characteristics shared by
successful initiatives?
 
Sheckler: building trust, skin in the game, regular
communication.
 
Lui Simpson, Association of American Publishers: Successful
for those who can afford to be part of the measures—too expensive, not w/in
reach of smaller rightsholder. Should be some push from gov’t to make these
measures far more effective.  They become
successful b/c there’s interest in engagement. 
Pushing parties together about what might work: that’s needed.  Petricone puts onus on rightsholder to solve
a problem they didn’t create.
 
RT, OTW: Interested in the claim that “everyone has to get
in the game”—but what does that mean? 
Big website does not mean big notices. 
Our website receives 100 million visits/week and gets fewer notices than
there are people from the Copyright Office here.  Wikipedia is orders of magnitude bigger and
reports similar numbers, most of them flawed. 
We’ve heard a lot about sites that ignore DMCA notices (overseas sites,
SciHub): making such sites double plus illegal, since on the facts as stated
they already are vulnerable to liability under current law, is not costless; it
hurts the rest of us trying to do the right thing.  We have experience with a government mandate
to use filtering technology: Sabam v. Scarlet case in Belgium: injunction
overturned because Audible Magic didn’t work as promised.
 
Nancy Wolff Digital Media Licensing Association : Tech is
there for reverse image search, but there’s no risk of massive litigation b/c
licensors are small and can’t afford litigation so they won’t come to the
table.  Multiple options for legit licensing
of images, but it’s very easy to infringe. 
Small claims court might help.  No
voluntary measures there b/c no reason to talk.
 
Greg Barnes, DiMA: (1) I share the optimism about voluntary
measures; allows different people to come to the table and avoids one size fits
all approach that would doom us. (2) Gov’t role: important role in bringing
people to table as objective facilitator, but shouldn’t put thumb on scale to
achieve a certain outcome.  On licensing:
Petricone’s point about ability to have licensed content out there decreasing
piracy is hard to deny. So many different studies [Australia, anyone?] show
this.  There are still problems in
licensing musical performances, mechanical licensing—broken for decades, and
Office knows this.  Online video
services’ ability to stream video has been hindered based on relationship
between studios and DVDs.  Lots of work
to do, but industry agreements allow us to talk about this and reduce demand.
 
John Garry, Pearson Education: Experience negotiating—tech
for websites that can screen in advance—none of the voluntary aspects deal
w/outlaw sites, and they’re a tremendous problem w/ no incentive to use
voluntary measures. Effective: website that came to AAP early on and wanted
that part of this business model; they wanted a business relationship.  Another experience: negotiating w/a large
website that looked DMCA-invulnerable; found a chink in their armor so they
negotiated to become a legit business. Every great fortune is founded on a
great crime. Nice relationship going forward. Voluntary is great when you can
get it, but the outlaws are a real problem.
 
Melvin Gibbs, Content Creators Coalition: Garry’s
right.  That period of transition has
become a permanent state for us.  We’ve
explored voluntary compliance.  The
parties are siloed and not speaking. ISPs have been lax in codifying standards
for accepting notice. True market failure. We want gov’t to facilitate.
 
Thomas Kennedy, American Society of Media Photographers:
Simson & Wolff are right. There are organizations that need to talk with
individual creators, and that’s not happening b/c there’s not sufficient
incentives. Voluntary measures can’t do that.
 
Kerry Sheehan, Public Knowledge: done right, voluntary
measures can ensure protection for speech and allow competition/avoid barriers
to entry. But we shouldn’t just talk about this as rights owners and ISPs.  It’s the 
world of internet users. These agreements need to be voluntary, not the
result of coercion, threats of new gov’t enforcement measures.  Need to be from open process, also public
interest voices. We haven’t seen public interest participation and these
agreements can be unfair to users and smaller providers. If filtering is being
proposed as STM, that’s especially important. 
A more traditional open standards body would be more appropriate.
 
KTC: considering the public interest: how do we do that?
 
Sheehan: greater transparency, greater inclusion of groups
who speak on behalf of public interest.
 
KI: what are the problems? Unavailability to smaller content
owners. Other issues w/existing voluntary measures? Do you see a way to fix or
improve those shortcomings and what would that look like?
 
Jonathan Band: Definitely preferable to coerced measures.  HEOA: coercive measure. Wrongly assumed that
campus infringement rates were higher than elsewhere but that turned out not to
be true.  Legitimate study that tries to
understand the notice system and people are criticizing it b/c it’s based on a
sample!
 
JC: Is it a bad law? 
 
Band: mandated education is a bad thing. No one’s ever been
able to show that infringement causes huge substitution; the amount is subject
to debate. I’m not convinced that requiring people to watch an online video is
really going to change behavior.  Rather,
what changes behavior is the fact that the old world where there were creators
distributors and users has become meaningless—every user can be a creator; they
become more sensitive to the complexity of © and its boundaries.  When you make your own videos, you understand
what you’re creating and what you’re using as building blocks, as all creators
do.  The act of creation allows you to
recognize what you owe and what you don’t. 
Educate users about the rights of others? No, educate them about their
own rights, which comes naturally.
 
Terry Hart, Copyright Alliance : Not a concern about any
particular measure, but more data is always important. Copyright Alert system:
overview of # of notices; very helpful. More recently, we had the PTO best
practices in sending notices proceeding. 
Written comments suggested it has been effective. Worth looking at how
well it’s worked. 
 
Rae: Inclusivity is the key need. Look at earlier agreements
later codified, like mechanical royalties, or streaming royalties for music
that were blessed by Congress. That’s stood since 2000, though it has lots of
failures. And it’s inclusive of all those eligible to receive royalties.
 
KI: on multistakeholder process: we heard some people
basically saying there were too many cooks. 
Is there a way to balance inclusion with getting so big that it becomes
unwieldy and you can’t reach consensus?
 
Rae: target the problem to be solved. If looking at
repopulation of infringing links, limit to UGC sites, not search (though search
is related to that).  Array of tech
vendors so you can understand what they do. 
Small artists included is absolutely important, and same w/developer
community, who’s theoretically the builders of platforms for us.
 
Schneider: what we don’t do in this country. We don’t allow
people to make money through illegal activity largely through initimidation.
That’s racketeering. For  me, that’s what
YouTube does. With these data lords [nice!] of unimaginable size, represented
by att’ys and lobbyists that are siphoning my assets.  All the large studios in NY have closed; you
can’t record a large film score in NY any more. All over the world—old men tell
me how under Communism they listened to jazz and it gave them hope.  This is a culture of literature, of music,
that we want. This isn’t about you protecting a large business making money no
matter what. Do we want a culture owned by one company? I don’t. Voluntary
measures, best practices like fingerprinting required by every company;
standardized takedowns; no required agreement to TOS; checkpoints educationally
on upload for photography, for music, for everything framed by the Copyright
Office; videos that people have to listen too so they don’t have to watch YT’s
copyright basics video. Muppets!  Fair
use is jiggling around and you can’t read it. 
It’s ridiculous. A ratings system for everyone that does a takedown or
counternotice. Forces people to have accountability for takedowns and
counternotices.  Everyone should agree to
it. It’s common sense to anyone who doesn’t have a hidden agenda.
 
Janice Pilch, Rutgers University Libraries: HEOA, regardless
of who pushed it, it is perceived to have improved the P2P situation in
universities. May seem onerous and rigid but appears to have had an
effect.  How could that be bad? Education
is important as a viable approach to changing behaviors.  There’s tremendous confusion on right or
wrongness of infringement in the context of viral social media messaging that’s
anti musician, anti copyright, anti publisher, anti human. Pushed by the
industries who benefit most from infringement, translates directly into cash
for them. Users benefit from infringement and they have various motives.
Sometimes they’re innocent b/c they don’t know or are confused by social
messaging; there’s no standard for national copyright education and people
never learn.  Students commonly never
have heard of copyright or fair use. 
Industry-driven social messaging tells them that infringements is a good
thing; contrary to basic social instincts and norms to respect others’ works.
Education could be stronger. For the public it doesn’t exist in good
forms.  But we need to kill the business
model of infringement first.
 
KTC: are there studies about effects of education on user
behavior?  Social messaging that’s
anti-©?
 
Pilch: HEOA requires universities to review effectiveness of
plans to combat unauthorized distribution. I haven’t read the reports, but they
exist.  On social media, on the basis of
personal experience, I see it on blogs and listservs.  We’ve heard of bullying people who object to
their works being used, and of people who agree—you get a string of
communication beating someone up for liking © or wanting their work taken down.
Can’t cite specifics.
 
Pariser: Not enough voluntary agreements—incentive to come
to the table. On the educational piece: you’re hearing two different streams of
ideas around education—one is we need it/another that the current info
sucks.  Copyright Office could create
more educational materials for consumers. Becoming creator is not its own
education; in her experience, when you tell a middle school student that her
selfie is © they don’t understand the plight of the © industry because they want
to give it away for nothing [the horror!] and that doesn’t convey the message
we want to convey.
 
Rasenberger: Voluntary measures can’t be the whole solution
b/c they don’t address criminal pirate sites, the source of a great deal of
book piracy. They move around the web and are mostly situated abroad.  Mandated TPMs through 512(i): it would be
important for the process to be mandated; given that the burden is on
rightsholders, there’s little incentive for ISPs to come to the table. The
gov’t has a role in convening these kinds of standards creation in
multiindustry processes that are open, fair, and voluntary.  BookID works only with Scribd; a mandated
process could force other service providers to also adopt it.
 
Education could help w/some users. Authors tell us,
particularly in genre field, that fans tell them that they only read books for
free—they have no shame. Free books are so readily available. Need teeth for
penalties, just as with speed limits—you need to give tickets to pirates
online.
 
Sheckler: In terms of user interest—users are first and
foremost in our minds.  That user wants
to interact w/our content and we want to teach them the right way.  PK and CDT were invited to work with us on
the CCI initiative.  We work regularly
through CCI on education for K-12.  I
find it surprising for Band to say it’s coercion to follow the law or petition
for a change in a law.
 
Simpson: participation has to be broad and inclusive.
Payment processor negotiated: rights holders invited were limited, not inclusive.
We do face a problem of overinclusion w/o expertise, so it needs to be a
balance. Preconsultation measure allowing those to voice their concerns. Need
to compel people to
 
Rebecca Tushnet, Organization for Transformative Works
 
Back to the Q: What are the problems?  Content ID: well known problems with
overblocking fair uses and falsely claiming revenues owed to others, recited
extensively in comments and also routinely reported to us by our creators,
including the internationally recognized artist I mentioned yesterday.
 
Different genres: Scribd’s own website clearly explains the
two big problems with BookID: [Scribd’s bookID:
 
“BookID relies upon computer-readable text in digital documents.
Content scanned from paper sources may not contain computer-readable text data,
making those sources unsuitable for use as references. Similarly, digital
documents encoded with optical character recognition (OCR) technology may
contain garbled or partial computer- readable text data. This may be true
regardless of whether the document is readable to humans. These conditions make
it very difficult, if not impossible, to detect matches….  [Note that this means that evasion is
trivially easy: all you need to do is insert things that people can’t see but
computers can.]
 
False Positives
 
The BookID database may contain reference samples from educational
textbooks and other works that contain long excerpts of classic literature,
religious texts, legal documents, and government publications that are
typically in the public domain. This can occasionally result in the removal of
uncopyrighted, authorized, or public domain material from Scribd.
 
… Unfortunately, the volume of reference samples and uploads to Scribd
prevent any sort of manual oversight or notification prior to effecting
removals.”]
 
Result is: overblocking: quotes from public domain materials
or even fair use quotes of another book: first uploader blocks subsequent users
of quotes; underblocking, just need to scan using OCR. The change could even be
something invisible to the naked eye, such as putting a nonbreakable space
( ) in place of a regular space, or adding random sentences and hiding
them with CSS. 
 
[More generally, a simple filter is trivially easy to evade:
easy to recode media in new file format and get different hash; algorithms to
spot minor edits would be difficult both in terms of programmer time and
expertise and computational resources. ]
 
If this check is actually supposed to work (that is, catch
these workarounds), you get into the realm of plagiarism detectors, which are a
fairly complicated technology. It would take us years to
develop our own plagiarism detector, especially given we’re part-time
volunteers.
 
How to fix?  No
perfect fix.  Easy appeal, nonthreatening
about piracy, walk people through: In some cases, Wikipedia’s fair use and
public domain guidelines for use of images would be good places to start:
useful for people who are highly motivated and willing to invest a fair amount
of time.
 
Not only is this education stuff really something that its
proponents imagine being imposed on the unwashed others, rather than on
themselves every time they seek to upload a photo to Facebook or send an email,
it’s also yet another mirage. We know people don’t read the terms and
conditions. We know they (we) just check the box.  [Copyright, which most people don’t care
about, won’t be the topic that changes their minds.  There are only a few effective ways of making
disclosures, and you can only do them once in a while or people tune those out
too.  Education sounds like having your
cake and taking it too, but it’s not that simple.  There are things you can do in particular circumstances
once the issue has become salient to people, like Wikipedia editors, but the
mandate being described as ideal would not be doing the work; what would be
doing the work is the associated filtering mandate.]
 
Nancy Wolff: can’t speak to voluntary measures in our area
b/c there aren’t any. Takedown doesn’t work. Harassment as a result of notices.
Copyright Office guidance on STMs would be good. Certain creators shouldn’t be
excluded.
 
Wayne Josel, ASCAP: we spend time educating our licensee
base about what the law is. Easier to get people to recognize obligations to
take a license before engaging in bad behavior than to correct bad behavior
once it starts—better for us to speak to a guy who’s about to open a restaurant
than one who’s been playing music for 3-4 years.  Contra Band, opposite of respect takes place
when people create new content—the ease of creating overcomes their sensitivity
to others’ rights. [How dare these new creators find out what creating feels
like.]  User experience overrides
information; people don’t click on the terms of service; services want to make it
frictionless so you no longer have to warrant that you own what you
upload.  [I agree that it’s a problem,
but people ignore these!  You can try all
you want!  The reason the services want
frictionlessness is in part that while friction does deter uptake, it also
doesn’t actually leave the people who sit through the legalese with any greater
appreciation of the TOS.  So the benefits
don’t justify the costs in most cases.  If
friction worked in terms of having people internalize new rules, there’d be more of a reason to use it.]  The law should be required reading. 
 
Dow: the ones that work better are collaborative, not
unilateral. 
 
Gibbs: public should be encouraged to think of themselves as
creators. Creation is built on other creation, which is why it’s in the
Constitution. People do need to be educated about their rights—not just fair
use, but you made it and it’s worth something. 
 
Sheehan: we should provide meaningful opportunities for
public input and transparency in CCI going forward.
 
KTC: education—what’s wrong w/education?
 
Sheehan: consider differences b/t ISPs, resources, user
community. One size fits all will  never
work—under and overinclusive, with unexpected consequences. Balanced content in
educational programs should respect users’ rights to reuse content in fair and legal
ways.

from Blogger http://ift.tt/1SXjCQC

Posted in Uncategorized | Tagged , , | Leave a comment