Altering the Scope of Section 230 Immunity: Should Social Media Companies be Responsible for Child Safety?

Posted By: Rob Pollack

laptopHow We Got Here:

In the mid-1990’s, Internet service providers who hosted content on their websites were being held to the same standards as traditional publishers in many lawsuits, leading to a situation in which these Internet companies were forced to spend considerable resources and time policing content on their sites and removing objectionable posts. This high standard was retarding Internet growth and stymying one of the advantages of the Internet: that it was a place for freedom of expression and thought and a place where a vast amount of information could be mined.

If ISPs and interactive content providers were required to police their sites diligently by finding and deleting objectionable content, they would be in court quite often if they allowed for largely free expression on their sites, or more likely, they would stop allowing such free expression on their sites and the users would not be allowed to utilize the Internet in the way Congress wanted the Internet to be utilized. Without taking these steps, the ISP’s would be subject to liability for every single post on their websites and so websites would start to resemble more print-magazines than the Internet we know today. Like print newspapers, everything that is posted would be highly scrutinized, curated, and filtered for content without much room for error. This is not how Congress wanted the Internet to function, and so they decided that they had to take action legislatively to protect ISPs, but has that legal protection gone too far at the detriment of minors? This is the question we have to decide after more than 20 years of Communications Decency Act (CDA) dominance in the legal landscape.

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Bots Everywhere: Copyright Holder Bots and YouTube Content ID: How Both Fail to Factor in Fair Use

Posted by: Julia Ketchum

YouTube_SquareYouTube has become a huge internet success. Today, YouTube has over a billion users and everyday people across the globe watch hundreds of millions of hours of YouTube content. However, when YouTube was first created, it was unclear it would last. In 2007, Viacom sued YouTube since so much of its content was infringing copyrighted materials and Viacom argued YouTube did not do enough to monitor its own site. In response, unsure if the Digital Millennium Copyright Act (DMCA) would protect YouTube from liability, YouTube began working on Content ID in 2007. Content ID allowed YouTube to begin noticing copyrighted material on YouTube prior to getting notification from the copyright holder. It also could show to the court that YouTube was playing a more active role in monitoring its own site. Viacom Intern. v. YouTube ended with YouTube being protected by the DMCA Act, protecting YouTube from liability so long as YouTube followed the process outlined in 17 U.S. Code § 512 of the DMCA. Despite YouTube being protected with DMCA, YouTube still implements its Content ID today. In this post, we will examine how copyright holders typically use bots to generate their copyright claims under 17 U.S.C. § 512 and the shortfalls with that. Then we will move to an analysis of YouTube’s Content ID and how it faces the same shortfalls the copyright holder bots face. Then we will conclude how both systems have failed to use a Fair Use analysis and solutions for the future.

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New FCC Internet Regulations: The Debate Between the Interests of Big ISPs and the Average Consumer

Posted By: Timothy Emmart

town-sign-83730_640You spend an afternoon online. Your browsing activity ranges from dinner recipes, to banking, to alt-right political websites, to pornography, to the top Chinese food delivery near your zip code. According to new congressional action, your ISP may collect the information from your afternoon online. Your ISP now knows that you viewed pornography and it has this knowledge without your knowledge and without your consent. The Internet is not a private place and this is increasingly true.

Conceptions of privacy in the U.S. have been fluid throughout history and as it relates to technology and the Internet. Last year the FCC approved new privacy rules aimed at protecting consumer information in part by placing the consumer in the driver’s seat by requiring ISPs to gain consumer consent on data collection. The new rules would have required ISPs to 1) take reasonable steps to secure consumer data; 2) to inform consumers of what data was being collected, how the data is used, and who has access to it; and 3) to gain consumer consent to data collection. Unfortunately for consumers, the implementation of these new rules was blocked last month by the new head of the FCC.

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The “Copyright Deadlock:” ContentID, Fair Use, and Derivative Works on YouTube

Posted By: Emily Weiss

Jim Sterling has a thriving YouTube channel. His videos include reviews of video games, along with longer video essays on the state of the games industry. Unlike a lot of other YouTubers, Jim refuses to monetize his videos, and instead supports himself through his Patreon page. But this doesn’t always prevent his videos from being monetized.

YouTube’s ContentID system, which came into being after a multitude of copyright disputes, was intended to allow copyright holders to “fingerprint” and claim their copyrighted material when it was used in other videos. As a result, some third parties, like Nintendo, could claim their copyrighted content through the ContentID system and monetize the video themselves.

Jim didn’t like this. So he decided to put copyrighted footage in his videos from multiple companies. Lo and behold, they claimed their content through the ContentID system. But since different companies had different ideas about the monetization of the video, the end result was that Jim’s videos ultimately remained without advertisements. Jim called his solution the “Copyright Deadlock.” But was his solution legal?

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The Collective Yar: Fallacies and Failure of Digital Copyrights in an All-Access Culture

Posted By: Drew Weigel

The notion that copyright, in part or in whole, might be an inadequate theory of property for digital media is not new. Some have responsibly argued that the statutory distinction between performance and distribution falls apart when applied to digital media, creating a false and unnecessary distinction between interactive and non-interactive digital communications. Others have gone off the deep end and argued that copyright itself had developed into collective brain damage, fostering a permission culture where expression in a digital era is diminished or completely silenced by fear of infringement. We’re going to descend even further into madness and explore why the heuristics of copyright law—inherently based in property traditions from nobody remembers when—fail to protect that which is demonstrably too elusive to be protected under the same theory. Continue reading

Does Internet Fan Fiction Violate Copyright Law or is Fan Fiction Protected by Fair Use?

Posted By: Julia Ketchum

 

Have you ever read a book or watched a movie and thought maybe it should have ended differently? Or have you wanted to see a copyrighted character interact in a new situation outside the normal tale? For fan fiction writers, using copyrighted characters and copyrighted settings to make a new story is an exciting way to show their fan appreciation for their favorite story. Fan fiction is defined by Merriam-Webster is “stories involving popular fictional characters that are written by fans and often posted on the Internet” and has been around for ages, even before the internet. Fan fiction can be based on any media from video games, plays, books, to even fan fiction written about real celebrities. With the rise of the internet, fan fiction is now easy and free to distribute to others on the internet thought such sites as fanfiction.net, archiveofourown.org, and wattpad.com. However, is fan fiction legal? Firstly, we will look at the exclusive rights copyright holders have over their own copyrighted product and whether or not any copyright rights are infringed by fan fiction. Next, we will look at the exception to copyright liability: Fair use. Looking at the factors of fair use, we will try to argue a position on fan fiction and whether or not it is protected by fair use. Overall, the factor of ‘transformative’ will determine if fan fiction is subject to copyright liability or if it should be considered fair use. Continue reading

Computer Software: The Transfer of Licenses Sale of Back-up Copies in the European Economic Area

Posted By: Timothy T. Emmart

The European Court of Justice (ECJ) recently held that it is an infringement of copyright to sell or transfer a physical back-up copy of a software program, when the original physical copy has been damaged, lost or destroyed. This ruling came after another ruling by the same court that created criteria for the lawful transfer of software licenses to third parties. The later ruling is in the same vein as U.S. copyright law, which allows the owner of a copy of a computer program to make another copy of that program for archival purposes and to sell or transfer that copy, along with the copy from which such archival copies were prepared. Continue reading

Yelp – The New Teflon Dons?

Posted By: Stephen Timmer

Yelp Defeats Legal Challenge to its User Review Filter.” It is a headline that we have all become accustomed to seeing; the scales of justice tipping in the favor of the 800-lb. gorilla of review sites. As a refresher, Yelp is one of the most recognized review sites on the Internet. Yelp professes itself as a source for consumers to locate local businesses, determine the quality of their services and to provide a forum for consumers to issue reviews on said businesses. James Demetriades, a manager of three restaurants in Mammoth Lakes, California, filed a lawsuit against Yelp; he claimed the site’s review filter was skewed towards displaying negative reviews of one of his restaurants and suppressing the positive reviews. While the case did not go in favor of Mr. Demetriades, it is important to understand how the California Superior Court in Los Angeles applied the law against him and how it was misapplied in this high-profile case. The rules of law cited in the case that could be crucial in holding Yelp liable in future litigation based upon different factual scenarios. Continue reading

The CDA – A Bulletproof Vest for Internet Service Providers?

Posted By: Stephen Timmer

Super Mario’s Pizzeria is celebrating two years in business! His business is in highly competitive area surrounded by other, established pizza places like Luigi’s Lovely Pizza Pies. Mario prides himself on customer satisfaction, whether patrons dine in or if they order take out through his mobile phone app (powered, ironically, by a video game company). He’s even snagged some prime catering gigs from businesses, like Sonic the hedge fund guy. Then one day a less than flattering review shows up on a review site for local businesses called “Holla!” under the name of “The Princess”. Holla, to protect anonymity of its users, allows them to use pseudonyms to protect against any reprisals and to elicit more candid comments. The Princess talks about how she got a fly in her Turtle Soup and how she sat at her table for twenty minutes before someone came over to take her order. Out of five stars she only gave Super Mario’s a half of a star. This review devastated both his dine in and his take out business. Mario has a pretty good memory and he never recalled anybody ever coming in and having an experience like that. Mario starts to think that Holla has made up the review and is favoring Luigi’s pizza joint, based on the lack of any negative reviews about his place. When Mario requests to Holla that they take that defamatory review down, they tell him to go stuff himself down a pipe. Knowing that the review has got to go, Mario decides to take Holla to court to compel them to take the review down. Unfortunately the court gave his case a game over when they told him that Holla cannot be held liable for the comments of its users, because they were not the one’s that posted it. Disheartened, Mario starts to consider a career in the plumbing business.

Unfortunately, a scenario with an infamous review site actually happened to a local service business in Seattle, where an anonymous review put dent in his business. Online service providers have been granted a seemingly bulletproof status thanks to legislation from Congress. While it has typically been a losing battle to challenge these providers in court over their content, recent developments in the United States Court of Appeals for Ninth Circuit  could give businesses an extra life against online providers and their users’ content. Unfortunately, this light at the end of the tunnel for merchants could prove to have dire constitutional consequences for the users of the online services. Continue reading