Digital Media

(Credit: SHARK)

A rodeo association has agreed to pay $25,000 to an animal welfare group to settle a lawsuit over the improper removal of videos from YouTube that showed roped calves being dragged off to die and tasers being used on tame horses to get them to buck.

In December 2007, YouTube removed dozens of rodeo videos after getting takedown notices from the Colorado-based Professional Rodeo Cowboys Association that claimed copyright violations under the Digital Millennium Copyright Act (DMCA).

The group that posted them, Showing Animals Respect and Kindness (SHARK), with the help of the Electronic Frontier Foundation, sued the rodeo group last summer. The group sued for misrepresentation, alleging that the videos could not have infringed any copyright because the rodeos themselves weren't copyrightable, the EFF said.

The EFF announced on Thursday that the two sides had settled the case. In addition to the payment, the agreement requires the rodeo group to run any future copyright claims by its own general counsel and by SHARK before notices are sent to YouTube. It also bars the group from selectively enforcing a "no videotaping" provision against SHARK.

The settlement, which is available on the EFF Web site (PDF), is part of the EFF's No Downtime for Free Speech Campaign, which fights misuse of the DMCA.

(Credit: Veoh.com)

The unprecedented decision by a U.S. district court judge to dismiss a copyright infringement case against video-sharing site Veoh is definitely favorable to Google, YouTube, and all user-generated sites, copyright attorneys say.

But the ruling doesn't mean that Google will necessarily prevail in the $1 billion copyright suit filed against it by Viacom, parent company of MTV and Paramount Pictures.

There are significant differences between Veoh and YouTube, according to Mark Litvack, a well-known copyright attorney who once worked for the Motion Picture Association of America (MPAA) and is now with the firm Reed Smith.

Veoh was sued by the Io Group, which does business as Titan Media, an adult entertainment company. According to court documents, Io said between June 1, 2006, and June 22, 2006, the company found 10 videos it owned--some as long as 40 minutes--posted to Veoh without its authorization. The Io Group filed suit on June 23, 2006, charging that Veoh had not done enough to protect its copyright.

The judge in the case, Howard Lloyd of the U.S. District Court for the Northern District of California found that Veoh and other sites that host user-generated videos can't be held solely responsible for vetting the clips. But what's different about Io and Viacom is that Io didn't notify Veoh of the copyright infringement on the site before filing suit.

In contrast, Viacom sent more than 100,000 "take-down notices" to YouTube prior to filing its $1 billion copyright complaint.

"The first reaction from Io was to sue rather than to work through the system," Litvack said. "They didn't find out whether Veoh worked to protect copyright, which it appears they do relative to the Digital Millennium Copyright Act."

What Litvack is referring to is the DMCA's Safe Harbor provision, which limits the responsibility of an Internet service provider for any criminal acts committed by users provided they follow a set of procedures. For example, ISPs must remove unauthorized content once they are made aware of it by the copyright owner, and must boot users who repeatedly violate copyright. They must also avoid profiting from any pirated content.

Litvack said that it appears Veoh followed these requirements and would have done so in Io's case had it been informed of the infringing content. Another important difference between Io and Viacom is that Io didn't prove Veoh's business model was dependent on piracy. In its ongoing lawsuit with YouTube, Viacom argues that YouTube is built on illegal content.

"What the Supreme Court said in the Grokster and Napster cases is that you have to look at the business model," Litvack said. "The files on Napster were something like 95 or 98 percent unauthorized copyright material that was illegally posted to the site. The copyright owners in that case demonstrated that Napster and Grokster were both well aware of the piracy on their site. There was no evidence that this was the case at Veoh."

Viacom issues statement following decision
The distinction was not lost on Viacom. Following the court's decision in the Veoh case, the media conglomerate issued this statement: "YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners. Google and YouTube have engaged in massive copyright infringement."

Litvack said that Viacom's attorneys can still prevail provided that they prove YouTube is a business built on pirated material and that parent company Google has knowledge of the unauthorized clips on the site.

But even with these differences, Litvack said Lloyd's decision did not benefit Viacom: "I'd be hard pressed to say that the decision is a good precedent for Viacom."

Fred von Lohmann, a senior staff attorney at the Electronic Frontier Foundation, an advocacy group for Internet users, was much more optimistic about YouTube's chances after learning of the Veoh ruling.

One of the lawyers who worked on the Grokster case, von Lohmann said that: "I think it was a complete victory for Veoh and for the 11 or so other user-generated sites that have copyright cases pending. The decision was pretty much a vindication for sites that comply with the DMCA."

He conceded that Io's decision to sue first without sending any notice to Veoh may prove to be an important distinction between that case and YouTube's. He added that it shouldn't make much difference as long as YouTube "has been responding to all of Viacom's notices," which he said the company appears to have done.

But von Lohmann argues that the many similarities between Veoh's case and YouTube's may prove more significant.

He said that the court noted Veoh's efforts to protect copyright and said YouTube has long adopted many of the same practices, such as booting repeat copyright offenders and blocking videos that have been flagged as unauthorized so exact copies can't be reposted.

While von Lohmann acknowledged that Lloyd's decision in the Veoh case isn't binding and doesn't force other judges to consider his ruling, he thinks it will be a "very influential decision because it's the first to rule specifically on user-generated sites."

"Generally speaking, judges pay attention to what their colleagues have said in previous cases," von Lohmann said. "I think this strengthens all user-generated sites that comply with the DMCA Safe Harbor provision."

A federal judge on Wednesday gave more weight to the concept of "fair use" when he threw a lifeline to a Pennsylvania mother's lawsuit against Universal Music.

The judge refused to dismiss Stephanie Lenz's suit claiming that Universal abused the Digital Millennium Copyright Act when it issued a takedown notice to YouTube over a 30-second video of Lenz's baby dancing to a Prince song.

In the first ruling (PDF) of its kind, Judge Jeremy Fogel held that copyright owners must consider fair use before sending DMCA takedown notices.

"Fair use is a lawful use of a copyright," the judge wrote. "Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright."

Lenz first filed suit in October 2007, after Universal requested that her video be taken down, and YouTube kept it off its site for more than a month. Lenz argues that the Prince song is barely audible in the short clip and clearly represents fair use, which allows for limited use of copyrighted materials without permission. In order to protect First Amendment rights, the DMCA allows for targets of illegitimate takedown notices to seek damages against the copyright holder.

The suit was initially thrown out of the federal court in April of this year, but the Electronic Frontier Foundation, which is representing Lenz, filed a second complaint just 10 days later.

Corynne McSherry, an attorney for EFF, called the ruling "a major victory for free speech and fair use on the Internet" that will "help protect everyone who creates content for the Web."

Although Fogel refused to throw out the case a second time, he expressed doubt that Lenz would win. "The Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith," he wrote.

The Electronic Frontier Foundation is opposing the prosecution of a Missouri mom who allegedly created a fake MySpace account to harass a teenage neighbor, saying the prosecutors' misuse of a federal law that targets computer fraud could turn millions of Americans into criminals.

The civil liberties organization filed an amicus brief Friday (click for PDF), urging a Los Angeles federal judge to dismiss the indictment of Lori Drew. She was charged in May with felony conspiracy and three counts of intentionally accessing a protected computer without authorization when she violated MySpace's terms of service.

The EFF, a prominent voice in Web advocacy, said in a release Monday that "criminal charges for a 'terms of service' violation is a dramatic misapplication of the CFAA (Computer Fraud and Abuse Act), with far-ranging consequences for American computer users." The organization adds--in theory at least--that users who don't read the terms of service on Web sites they visit would be accused of a federal crime.

The CFAA is usually used to prosecute hackers and identity thieves. But the EFF argues that citing the law for a terms of service violation would mean, for example, that anyone under the age of 18 who uses the Google search engine would face criminal charges.

According to police, Drew created a fake MySpace account and posed as a teenager named "Josh Evans" to befriend and verbally attack 13-year-old Megan Meier, a former friend of Drew's daughter. It was reported that after a particularly hurtful conversation with "Josh" in October 2006, Megan committed suicide in her O'Fallon, Mo., home.

The case drew national attention after a local newspaper reported the story, but Missouri prosecutors could not prove that Drew broke any laws. Instead, charges were brought in a Los Angeles federal court, utilizing the CFAA to indict Drew for violating MySpace's terms of service.

According to those terms, users agree that: "By using the MySpace Services, you represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information." Members also acknowledge that harassment is prohibited.

The argument now being made by the EFF was advanced by Drew's attorney in late July. He said the law being used to prosecute Drew is flawed, unconstitutionally vague, and tries to criminalize behavior committed by millions online every day. Drew faces 20 years in prison; she has pleaded not guilty.

Although the EFF is campaigning against the indictment of Drew, it nonetheless called Meier's suicide "tragic."