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Viacom's $1 billion copyright infringement lawsuit against YouTube "threatens the way hundreds of millions of people legitimately exchange information" over the Web, YouTube parent Google said in a legal response to the suit.

The response, reported by the Associated Press, was filed late Friday in U.S. District Court in Manhattan. Google says the threat comes from Viacom's attempt to make "carriers and hosting providers" liable for what people post. Google, by the way, has said this suit will only be resolved in court.

Viacom originally filed its lawsuit last year and filed an amended version last month. In the more recent version, the AP reported, Viacom said video-sharing site YouTube consistently allows popular, copyrighted material to be posted to its site, including from Viacom-owned MTV and Comedy Central. Viacom said that it has identified more than 150,000 unauthorized clips on YouTube and that the site has done "little or nothing" to stop the copyright infringement, the AP reported.

"The availability on the YouTube site of a vast library of the copyrighted works of plaintiffs and others is the cornerstone of defendants' business plan," Viacom said, according to the AP.

Google, in its response, said YouTube "goes far beyond its legal obligations in assisting content owners to protect their works." Google added that YouTube has faithfully followed the Digital Millennium Copyright Act and responded to claims of infringement.

YouTomb shows videos removed from YouTube because of copyright complaints.

(Credit: YouTomb)

Ever wonder how many YouTube videos vanish from alleged copyright violations? A Massachusetts Institute of Technology research project called YouTomb can show you some.

The site, an effort by the MIT Free Culture group, scans the most popular YouTube videos for the metadata Google inserts after a video has been taken down. YouTomb shows a list of recently removed videos (which you can't actually view), who requested their removal, when they were taken down, and how long they were up beforehand.

The Digital Millennium Copyright Act shields Web sites from legal action based on content published there by site users if the Web site operator removes the content upon receipt of a "takedown" request by the copyright holder.

The MIT Free Culture group said it became more interested in the YouTube takedown issue after Google launched a tool that scans to see if uploaded videos match fingerprints of copyright content.

"While many YouTube videos that contain non-original material are blatantly violating copyright (e.g., exact rips of TV shows), many others have a more complex legal status because of the fair use provision of copyright law," the group said. "The sampling and remixing of non-original material have often led to great cultural accomplishments, so protecting this fragile aspect of copyright law is very important to us."

(Via Google Operating System blog.)

Google is willing to fight Viacom all the way to the Supreme Court in the companies' legal battle over YouTube and pirated videos, but Viacom is taking a hard line of its own, executives from the companies said Wednesday.

David Eun, Google's vice president of content partnerships, told Dow Jones Newswires that Google has no plan to resolve the Viacom case outside court. "We're going all the way to the Supreme Court," Eun said. "We're very clear about it."

Separately, Viacom Chairman Sumner Redstone told Dow Jones he's standing up for broader principles.

"When we filed our lawsuit, we not only served our own interests, we served the interests of everyone who owns copyrights that they want protected," said Redstone. "We cannot tolerate any form of piracy by anyone, including YouTube...they cannot get away with stealing our products."

Viacom sued Google for "massive intentional copyright infringement" in 2007, seeking more than $1 billion in damages.

At stake in the fight is a key part of the Digital Millennium Copyright Act (DMCA), the 1998 law that shields Web site owners from copyright infringement involving material published by users. The "safe harbor" provision in the law can protect against infringement claims as long as copyrighted material is removed upon notification.

After the suit, YouTube launched an antipiracy tool that checks uploaded videos against the original content in an effort to flag piracy.

Slate, a popular news site, seems to be openly violating the Digital Millennium Copyright Act.

That law, much hated in cyberrights and computer security circles, is a thorn in the side to many researchers. The interesting question that we must ask is: Will Hollywood let Slate's probable violation slide, or will they lawyer up and go after the site owned by The Washington Post Co.?

A few days ago, Slate released a video mashup of footage of Hillary Clinton and a few scenes from the movie Election, starring Reese Witherspoon. The video is mildly amusing, and did at least remind me that Election is a funny film that I should probably watch again soon.

Cynthia Brumfield over at IP Democracy discusses the video mashup and briefly explores the issue of fair use:

"It quite literally fits [NBC Universal lawyer Rick Cotton's] idea of what wouldn't be considered fair use under a redefinition. [Columbia Law Professor Tim Wu's ] definition, however, would permit this video under fair use because nothing about it is a substitute for the original 'Election' film. It also, I would argue, enhances the film's value for those who have not seen it."

While I think she brings up an interesting point, I'm fairly certain the issue of fair use, at least in this case, is going to be cut and dry: Slate is in the wrong, and is being pretty blatant in its open infringement of copyright.

The few clips of Election in the Slate video are very high quality. The video is crisp, the sound is clear. As a result, I'd be willing to bet a few bottles of La Fin Du Monde that Slate got the video clips from a DVD. It's almost certainly not from a video cassette tape, and I highly doubt that the Slate team made a digital copy from cable TV.

DVD ripping software is widely available. Personally, I'm a big fan of Handbrake, but there are many other free software solutions out there. These software packages allow people to make a local video copy of a DVD movie. This is not as simple as it sounds, given that all Hollywood DVD discs are encrypted with a once-secret algorithm. The MPAA and others have vigorously gone after anyone who reverse engineered (or even published information on) the inner workings of the CSS algorithm used to encrypt DVDs.

Which brings me to my "favorite" law: the Digital Millennium Copyright Act (DMCA). This law, among its many horrible features, makes DVD copying a crime. DVD-ripping software is classed as a circumvention device, the use of which is a big no-no. Section 1201(a)(1)(A) of the U.S. code makes this pretty clear:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Ok, so we've now established that if Slate used DVD footage in its video mashup, then it is almost certainly violating the DMCA. What does that have to do with any possible fair-use defense to a copyright infringement claim? It turns out that to make a successful fair-use claim, you need to have a legitimate, licensed copy of the original work. As the courts wrote:

To invoke the fair use exception, an individual must possess an authorized copy of a literary work (Atari v. Nintendo 975 F.2d 832).

If Slate used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mashup) is in no way authorized. This means, unfortunately for Slate, that it would have no fair-use defense, and could thus face a copyright infringement lawsuit.

While I've spent the majority of this blog post describing potential illegal acts by Slate, the real criminal here is the U.S. Congress for passing the DMCA, and in one single act, putting hundreds of computer security and cyberrights activists at risk. As a Ph.D. student, the DMCA is a complete pain in my ass and makes my research extremely difficult. As a result, I routinely have to submit my projects to Indiana University's general counsel for a sign-off.

So why am I making this blog post? Most people have no idea that DVD ripping is illegal. Most artists, mashup creators, and video-bloggers are in the dark about the potential crimes they may be committing. Furthermore, the RIAA and MPAA have a long history in going after the little guy.

Slate (owned by The Washington Post Co.) has deep pockets. If the MPAA tries to make an issue out of this, it would create huge amounts of publicity, and perhaps lead to calls for an overhaul of the DMCA. (I can dream, right?) At the least, it would force the MPAA to burn through a few bucks.

Disclaimer: I am not a lawyer. This is neither legal advice nor real legal analysis. Don't make decisions based on my blog ramblings. However, this issue is essentially straight from the final exam in my copyright-law class from last year, so I'm fairly confident that I'm right.

Also, a tip o' the hat goes to Public Knowledge's Alex Curtis, whose offer of a T-shirt inspired this blog post.

Slate could not immediately be reached for comment.

So Warner Music isn't as petty as I thought it was. According to this story in Billboard, Warner didn't ask for YouTube to remove videos of the recent Led Zeppelin show from YouTube. Rather, it was a company called GrayZone, which has been authorized to issue takedown notices on behalf of Warner. In this case, GrayZone acted on presumption, and YouTube's automated system inaccurately attributed the notices to Warner.

This makes an interesting point: under the Digital Millennium Copyright Act, the copyright owner is responsible for policing each violation and requesting its takedown. (I'm not a lawyer, but the relevant section in the act seems to be: "The burden of providing written notice of design protection shall be on the owner of the design.") So it's not enough for Warner to say "remove all videos of any band signed to Warner" or even "remove all videos of Led Zeppelin's December 10 concert." Rather, they have to point out each copyrighted work individually. That's a lot of work, which is why they've apparently outsourced the job to GrayZone.

No word on whether YouTube will automatically restore the videos, but I think not--users probably will have to repost them. And of course it's still possible that another party--the show's promoters, the owner of the venue, the band, or its management, even Warner (for real this time)--might ask for them to be taken down. In the meantime, LiveLeak has a few videos (thanks to Wired's Listening Post and Salon's Machinist blogs for the tip).

I was a big Spider-Man fan when I was a kid. I could never understand why poor Spidey was persecuted by J. Jonah Jameson, editor of the Daily Bugle. I was especially mystified by how easily Jameson could get the police to pursue Spider-Man despite all the obvious good he was doing.

I'd like to think that anyone familiar with the Spider-Man stories--and who isn't, considering that the three recent movies brought in $2.5 billion at the box office plus untold additional revenue from the DVD releases--would appreciate the irony of Peter Parker's position. He does so much good for the world, but he gets persecuted for it.

But obviously that lesson hasn't been learned by some writers and fans who really ought to know better.

Three months ago, the Science Fiction & Fantasy Writers of America dissolved a committee created to pursue copyright violations when the committee's chairman, Andrew Burt, made a fairly significant mistake in his dealings with a free text-sharing site called Scribd.

Scribd was hosting thousands of documents violating the copyrights of SFWA members, and declining to cooperate with SFWA's demand that Scribd remove them. Scribd said it was entitled to individual DMCA takedown notices for each one. In truth, however, the DMCA doesn't allow a Web site to hide behind the official takedown process this way. As I explained in my blog posts at the time (part one, part two, part three), the DMCA requires Internet service providers to remove pirated content no matter how they become aware of it.

But Scribd wasn't responding appropriately, telling SFWA to "pound sand" (as writer Jerry Pournelle described it on his blog earlier this week). Burt, perhaps out of frustration, told Scribd to treat a list of apparently infringing documents as if it was a DMCA takedown notice, which it wasn't--but Scribd removed the pirated documents as well as some incorrectly listed items, including a story from writer Cory Doctorow and posted to Scribd by one of his fans.

It's clear to me that in spite of Burt's mistake--he should have made his case on the language of the DMCA rather than incorrectly attempting to convert an informal list into a formal demand--this whole process was a big win for the good guys. A bunch of pirated content was removed, and the other material was restored within days.

But anticopyright activists, with Doctorow in the lead, raised a huge stink over the incident because they felt Burt was acting irresponsibly. They persuaded SFWA to shut down Burt's committee and establish an advisory committee to recommend ways to deal with the threat from book pirates while being more careful about the law.

The advisers released their recommendations on November 1, and about four weeks later, SFWA's board voted to follow almost all of them, creating a new Copyright Committee with a broader charter but closer oversight.

But because the board put Burt in charge of the new committee, all the people who were angry with SFWA over the Scribd affair became outraged all over again.

Andrew Burt

(Credit: Andrewburt.com)

So there we have it. Burt doesn't look anything like Spider-Man, but he's had about the same effect--the streets get cleaned up at the cost of a few sticky bits left hanging around. And what's his reward? A few loudmouths are demanding his arrest and summary execution.

If you aren't impressed by this analogy yet, you have to compare this drawing of J. Jonah Jameson with this photo of Cory Doctorow.

Buzz cut, skimpy facial hair, cancer stick--I rest my case.

Doctorow ought to know better. Even if he prefers to distribute his writings free of charge and make his living another way, he should show more respect for the right of other writers to sell their work. He should be supporting SFWA, not book pirates and those who protect them. And that goes for all the other SFWA members who've been giving SFWA grief over Burt's actions, too.

I just hope the SFWA board stands behind Burt until the current furor dies down and he can get back to work. Scribd still carries huge amounts of pirated content, and there are even worse sites out there that I won't mention. SFWA is in a good position to deal with these sites, and it would be a shame if these efforts were sidetracked by a vocal minority that doesn't particularly care if SFWA continues to exist at all.

A quick follow-up to last week's post about ticket brokers. Tuesday, a federal judge issued an injunction against RMG Technologies, barring the company from "creating, trafficking in, facilitating the use of or using computer programs or other automatic devices to circumvent" the system that Ticketmaster uses to control online ticket purchases.

According to testimony from former broker Chris Kovach, he had used RMG's software to buy hundreds of tickets at a time through Ticketmaster's site before human fans had a chance to do so, then turned around and sold these tickets through brokerages like StubHub. The judge in the case agreed that Ticketmaster had a reasonable chance of proving that RMG violated Ticketmaster copyrights, the Digital Millennium Copyright Act, and the Ticketmaster site's terms of use.

This is a win for consumers, but I don't believe this is the end of this issue. Recall what happened with file-trading networks: as soon as the crackdown began in the U.S, they moved overseas. It might be trickier with ticket brokers, as they have to ship a physical object--a concert ticket--back into the United States, where it could theoretically be seized at the border. But I suspect as long as people are willing to pay above face-value for concert tickets, brokers will use every available method to snap up the good seats as soon as they go on sale.

WASHINGTON--The controversial U.S. law that generally bars people from tampering with copy-protection features drew accolades on Wednesday from the video game industry's chief executive.

Entertainment Software Association chief Mike Gallagher

(Credit: U.S. Department of Commerce)

Mike Gallagher, CEO of the Entertainment Software Association, applauded the 1998 Digital Millennium Copyright Act as "vitally important" for video game and console makers seeking to stomp out unauthorized copies of their wares.

Thanks to digital-rights management mechanisms, Gallagher claimed unauthorized copies of popular video games like Halo 3 that users download from file-sharing networks won't play on XBox 360, ensuring "the full value of the product is received throughout the chain." (In case you were wondering, the worldwide video game industry pulls in $31 billion in revenue per year today and expects to see that figure grow to $50 billion by 2011, he said.)

The problem is, "very few countries follow the path of the DMCA," Gallagher said at an antipiracy summit here hosted by the U.S. Chamber of Commerce. "It's very important (that) we see that extended."

Gallagher went on to declare the United States the "beacon of intellectual property protection in the world."

And just to toot America's horn a bit more, the former Bush administration Commerce Department official lamented that European regulators are going after companies like Microsoft (an ESA member), Qualcomm and Intel because of what he called their "strength and genius and know-how." He suggested those proceedings pose a challenge "to all of us who would see ourselves as becoming successful."

With Steve Jobs' recent announcement of his intention to fight off the independent iPhone developers, the question that must be asked is how will Apple try to defeat the hackers: Frequent and disruptive software updates, or lawsuits? Will Apple risk losing its most frequently (ab)used legal tool, the Digital Millennium Copyright Act, to try to punish the developers of the iPhone unlocking tools?

The wait is over. After being teased over the past few weeks with rumors that Apple would turn a blind eye to iPhone hacking or *gasp* even encourage it, the news is in and it ain't good for the hackers.

At the official U.K. launch of the iPhone Tuesday, CEO Steve Jobs made it clear that Apple will fight attempts to use the popular device on unauthorized networks. "It's a cat-and-mouse game," said Jobs. "We try to stay ahead. People will try to break in, and it's our job to stop them breaking in."

anySIM iPhone unlocker

(Credit: iPhone Dev Team/Hackintosh)

For the loose-knit community of iPhone developers, the last few months have been an around-the-clock hacking session. As a result, programmers have released a plethora of applications. Some, including an instant-messaging tool, a general purpose application installer and even a Nintendo game emulator, can be seen simply as developers releasing applications that Apple just didn't get around to writing itself. Other hacks, such as the much hyped iPhone Dev Team's anySIM unlocking tool, or the numerous free-ringtone tutorials that have been floating around the Net, can be more accurately described as a developer-lead attack upon Apple's revenue streams.

Apple has sunk a significant amount of developer time and marketing dollars into creating a product so drool-worthy that fans spent days queuing outside stores around the nation. Because of the significant hype surrounding the device, and the millions of customers who would flock to whichever wireless carrier with whom Apple signed an exclusive distribution deal, Jobs and his negotiation team were able to extract highly favorable, if not downright obscene amounts of money from the wireless carriers. While AT&T agreed to give Apple up to $11 per month for new customers who came to the carrier due to an iPhone purchase, some media reports are suggesting that Jobs was able to extract 40 percent of the monthly subscription fees that U.K. network O2 is charging its customers.

O2 is charging customers between $70 and $110 for its different monthly iPhone plans. With an 18-month contract, Apple is looking at between $500 to $800 in revenue share per customer. While the approximately $250 that AT&T will give Apple for a new customer over the lifetime of a 2-year contract is rather paltry in comparison, it still provides enough of a financial incentive for Apple to do all that it possibly can to lock the devices down, and keep hackers from unlocking the platform. Furthermore, if keeping open-source tinkerers away from the guts of the iPhone can also protect Apple's new, but potentially hugely profitable venture into the mobile phone ringtone market (99 cents per ringtone for each song already purchased), even better for Mr. Jobs and his stockholders.

Now that Jobs has declared war on the iPhone hackers, the only question that remains is the approach that Apple will take: software updates that'll break the iPhone hacks, or lawsuits against the trouble-making developers. To answer this question, we to look to the law and, most importantly, the Digital Millennium Copyright Act.

The most powerful weapon in Apple's legal arsenal is the Digital Millennium Copyright Act (DMCA). This law, much hated by open-source developers and much loved by copyright holders and mega corporations, was passed by a unanimous vote in the U.S. Senate before being signed into law by President Bill Clinton in 1998.

DRM protest outside Apple store

(Credit: Quinn Norton)

The DMCA is fairly complicated, but there are two main parts that seriously threaten researchers, hackers and hobbyists. First, the law makes it a crime to circumvent the technological locks that control access to copyrighted works. Second, the law makes it a crime for anyone to "traffic" or share such circumvention tools. That is, it's a crime to break the encryption protecting a copyrighted work, and it's an additional crime to share the software that breaks the encryption with anyone else.

While the law was originally intended to protect music and movie owners who were scared of infringement in the Digital Age, it has been used to try to block the sale of third-party printer cartridges, universal garage door openers, and even Web sites that publish leaked copies of scanned fliers for post-Thanksgiving "black Friday" sales. A few years ago, a number of prepaid mobile phone companies started using the DMCA to go after people who were buying their subsidized phones, stripping off the software and re-selling them to others.

When it passed the DMCA, Congress empowered the Librarian of Congress to issue exemptions to the anti-circumvention provision of the law. This power is intended to protect the public from access-control technologies that substantially interfere with their right to make non-infringing uses of copyrighted works. Current exemptions include the right for users to hack restrictive e-book digital rights management technology to allow for inter-operation with screen-readers and other helpful technologies used by blind and disabled people.

In 2006, Stanford professor (and now EFF cyber-lawyer) Jennifer Granick petitioned the Librarian of Congress to permit mobile phone customers to hack their own phones. Citing a need to reduce environmental waste due to prematurely disposed locked phones, and the needs of business travelers to be able to communicate around the world without carrying a phone for each country, the Copyright Office agreed with Granick, and granted mobile phone customers an exemption to the anti-circumvention rule.

That should be the end of it, right? An exception to the anti-circumvention rule exists for mobile-phone inter-network interoperability, and thus Apple should have no DMCA-related leg to stand on. The problem lies in the fact that the DMCA has two nasty provisions: the anti-circumvention rule and the anti-trafficking rule. As crazy as it may sound, while it's perfectly legal for a blind programmer to reverse engineer Adobe's e-book technology, it's illegal for her to share it with another, perhaps less technically savvy blind friend. As far as the law is currently concerned, if you don't have the technical skills to reverse engineer, you're not permitted to free your e-books or your mobile phone.

Unless this legal snafu is some kind of incentive-via-necessity based plan to turn every blind American into a reverse-engineering uber-hacker, the law is clearly broken. It is most likely an unfortunate oversight on the part of the 100 senators who unanimously voted for the DMCA, perhaps without fully understanding how it would be used in the future. Thus, we now find ourselves in a situation where it is perfectly legal to hack your own iPhone, but most probably illegal to share software with others that will automate the process.

With the DMCA most likely on Apple's side, Steve Jobs and his band of merry lawyers should have already filed a number of lawsuits against the iPhone Dev Team for its anySIM unlocking tool. Given the noticeable absence of lawsuits, one has to ask: Why hasn't Apple sued?

Apple likes the DMCA, a lot. Were there some sort of DMCA frequent-flier mile scheme, Steve Jobs would have earned himself at least a few free flights to Tahiti. While Apple is on solid legal ground when it goes after programmers for reverse engineering the Mac OS to run on cheap Dell PCs, any sort of DMCA action against the iPhone Dev Team would be far more problematic. Despite the fact that the Librarian of Congress does not have the power to create exemptions to the anti-trafficking provision of the DMCA, Congress clearly did not intend to create this artificial barrier between those with programming skills and those without. Quite simply, the law is broken. If Apple begins filing DMCA iPhone lawsuits, it could soon find itself in the unpleasant position where the courts--or worse, Congress--end up re-evaluating the merit and legality of the DMCA.

My suspicion is that Apple will not want to risk losing the golden egg-laying DMCA goose, and thus, will stick to frequent software updates for the iPhone that break community written applications. Why sue when you can patch?