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US v. Jones and Technology’s Displacement of Values

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Judge Frank Easterbrook and Professor Lawrence Lessig had a famous exchange in the late 1990s regarding cyberspace law.  Easterbrook argued that scholars and judges ought not waste energy developing a body of law specific to cyberspace.  Such law would be as parochial and rapidly obsolete as a “law of the horse,” or a body of law governing behavior on horseback.  The phrase is borrowed from Carl Llewellyn, who used it illustrate his reasons for making the UCC’s contract rules generalizable, rather than specific to particular contexts.  Easterbrook opined that such technology-specific law would not “illuminate the entire law.”

Lessig responded by arguing that values are imbedded in technology itself.  Technological changes can displace values currently expressed by the law, forcing government to choose whether to accept the displacements or use law to reinforce existing values.  In regulating new technology, we must decide whether the technology displaces values so important that “law might respond to reclaim the values displaced.”  Law directed at particular technological areas does in fact “illuminate the entire law,” because it responds to unique technological challenges to our values.

It is worth revisiting Easterbrook and Lessig’s exchange in light of the Supreme Court’s recent ruling on US v. Jones.  (For MTTLR Blog’s previous coverage on US v. Jones, see herehere and here.)  The Court seemed wrong-footed by precisely the phenomenon that Lessig identified: technology had displaced the values in existing law.  The “reasonable expectation of privacy” test, from US v. Katz (1967), has lost its clarity because technological developments have altered those expectations.  Justice Alito competently articulates this point in his concurrence.  He notes that historically, the most important privacy protections have been practical rather than legal.

Extrapolating from Alito’s position, it seems implausible that the “reasonable expectation” test protects privacy interests exclusively because they are reasonably expected.  More likely, it indicates that Fourth Amendment protects privacy interests roughly coextensive with those that a reasonable person expected in 1967.  The Katz court could not have meant that Fourth Amendment protections erode with the progress of monitoring technologies.

Alito is right then, to suggest that the courts need not dumbly wait for legislation.  Courts can respond proactively to new technologies because the law is an expression of values.  When technology challenges or, in Lessig’s words, “displaces” those values, the courts must be ready to use existing law to push back.  The Court thus need not have punted to avoid interpreting the reasonable privacy expectation.

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April 30th, 2012 at 9:14 am

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US v. Jones: Fourth Down, One Yard to Go . . . and the Court Decides to Punt

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The latest installment of the US v. Jones saga has just arrived.  In a decision released earlier today, the Supreme Court held that government installation and monitoring of a GPS device on a suspect’s vehicle constitutes a “search” under the Fourth Amendment.

(For a recap on MTTLR’s previous coverage of the case, see two earlier blog entries posted here and here). For those disinclined to navigate away, the Court decided whether the government can engage in prolonged monitoring of a suspect’s vehicle by installing and using a GPS device without a warrant. The lawyers for Antoine Jones argued that the government needs a warrant for such action because it constitutes a Fourth Amendment “search.” The government countered that a warrant is unnecessary because individuals do not have a “reasonable expectation of privacy” when driving vehicles on public roads. Therefore, using GPS to track a suspect in public places, even for prolonged periods of time, arguably does not constitute a Fourth Amendment “search.”

Although the Court ultimately sided with Antoine Jones, a majority of the Justices based their decision on a much narrower and unexpected approach. Rather than addressing the government’s prolonged use of the GPS device, five Justices chose instead to resolve the case solely by analyzing its installation. Resurrecting a “common-law trespassory test” to determine whether a search occurred, the Court held that the government committed a search by trespassing upon Jones’ Jeep Grand Cherokee to install the tracking unit. An exciting victory for Antoine Jones and advocates pursuing heightened protection of possessory interests, the decision was far less eventful for those tracking Supreme Court treatment of Fourth Amendment privacy doctrine in relation to privacy-invading technologies. The Court opted to punt instead of attacking the seemingly more pressing issue of how to reconcile the technological advancement with Fourth Amendment protection of “reasonable expectations of privacy.” Unfortunately, with US v. Jones now at a rest, we’ll just have to wait and see what the next case brings.

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January 25th, 2012 at 1:38 pm

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United States v. Antoine Jones: GPS Tracking, Privacy Expectations, and Public Places


In a little under two months, the United States Supreme Court will be hearing oral arguments in United States v. Antoine Jones, regarding the government’s ability to perform warrantless GPS tracking of a criminal suspect’s vehicle.

Although the case addresses only a narrow segment of Fourth Amendment jurisprudence, the Supreme Court’s holding may potentially have a broad impact on future conflicts between technological advances in police investigative techniques and societal expectations of informational privacy.

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October 1st, 2011 at 8:21 pm

Net Neutrality: A Brief Overview Prior to FCC Vote on Feb. 26

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Net neutrality is the concept that broadband network providers should be completely detached from the information that is sent over their networks. Some large internet providers want to get rid of net neutrality, which is the current state of affairs, and replace it with a prioritized internet that would create a series of “internet fast lanes” that would be available at a price premium over “internet slow lanes.” In very simple terms, this means that if one has the money, one will have a fast internet connection. If one does not have the money, one will have a relatively slow internet connection.

Removing net neutrality is rationalized by a number of different advocates supporting various agendas. The most obvious support comes from internet service provider companies who stand to profit in offering various internet packages to not only consumers who are visiting websites but also companies, businesses, and individuals who are running websites. Companies don’t often come right out and state that they are lobbying the government for a piece of legislation that will generate more profit for companies in that field, but instead come up with another, more altruistic rationalization. One example is Verizon stating that net neutrality harms disabled people and the access of visually-impaired people to faster internet access. Support also comes from a libertarian camp that wants to encourage deregulation and minimal government interference into free market capitalism. The third main support for removing net neutrality takes the form of national security and preventing access to sites with undesirable or dangerous content.

The poster child in the industry for net neutrality is Netflix. In 2014, major internet service providers such as Comcast and Verizon were accused of throttling traffic to Netflix in a pseudo extortion scheme (i.e., Netflix must pay more money to Verizon or it will make traffic so slow for consumers of Netflix that they will be forced to move their business to a competitor’s service that isn’t being slowed down by Verizon). Netflix did pay for more bandwidth on Comcast and Verizon, but there has been evidence of Verizon throttling access to Netflix even after Netflix paid for more bandwidth. As a public service, Netflix published a short essay on their website detailing what is wrong with the concept of “internet fast lanes.” The essay highlighted that there are two fundamental problems with this approach to internet access: (1) it provides internet service providers with a “perverse incentive” to increase revenue by creating congested networks with slow access speeds; and (2) it gives internet service providers the power to choose who has access to which content on the internet by throttling access speeds to the point of rendering a certain website inaccessible due to extremely long load times.

In November 2014, President Obama showed his support for net neutrality by urging FCC Chairman Tom Wheeler to enforce net neutrality on a basis of Title II of the Communications Act. President Obama reasoned that “our law has recognized that companies who connect to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business. […] [T]he same philosophy should guide any service that is based on the transmission of information.” Some members of Congress, such as U.S. House of Representatives Subcommittee on Communications and Technology Chairman Greg Walden, view Title II as an inappropriate and unworkable solution. Others, such as House Judiciary Committee Chairman Bob Goodlatte, favor internet regulation under FTC antitrust laws. One thing is certain; the majority of the republican constituency in Congress does not favor net neutrality.

No one knows what will happen at voting time on February 26th, but it certainly won’t go unnoticed. As of January 19th, 2015, the F.C.C. has already received four million comments on net neutrality. The internet touches every part of modern society, from the home to the office to politics; the F.C.C.’s decision will impact every American who comes in contact with the internet in some way.

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February 13th, 2015 at 11:43 am

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Are Your E-mail Communications Protected by the Stored Communications Act?

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Last month, the Supreme Court of South Carolina ruled that the Stored Communications Act (“SCA”) did not protect e-mails contained in a user’s webmail account. Jennings v. Jennings, No. 27177 2012 WL 4808545 (S.C. Oct. 10, 2012). The e-mail user sued his wife and her relative for violating the SCA by accessing his Yahoo! account to obtain e-mails he exchanged with another woman.

The SCA was enacted in 1986 as part of the Electronic Communications Privacy Act and provides protection to electronic communication service providers and users by limiting when the government can compel disclosure of certain communications, limiting when service providers can voluntarily disclose information, and providing a cause of action against a person that intentionally obtains an “electronic communication while in electronic storage” without authorization. 18 U.S.C. § 2701(a)(2) (2000). Due to outdated definitions, the SCA affords little protection to internet communications exchanged today.

An electronic communication service is a service providing “electronic storage,” which is defined as “(A) any temporary intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17) (2000). This definition of electronic storage tracked the way e-mail was used at the time the SCA was enacted; mail was temporarily copied and stored before being downloaded to the recipient’s computer. Today, webmail services allow the user to access mail on the web through any computer rather than require the user to download the mail onto their personal computer, which raises the question of whether webmail is ever in temporary intermediate storage or stored solely for backup protection.

The Department of Justice (“DOJ”) has adopted a narrow interpretation of “electronic storage.” According to the DOJ, a communication is not electronic storage under §2510(17)(A) unless it is stored in the course of transmission, and communications stored as backup protection under § 2510(17)(B) are those that are stored by the service provider as a backup copy prior to delivery to the recipient. CCIPS, U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 123 (3d ed. 2009). Conversely, in Theofel v. Farey-Jones, the Ninth Circuit found that e-mail read by the recipient but still available on the server was stored for the purpose of “backup protection” and thus protected by the SCA under § 2510(17)(B). 359 F.3d 1066 (9th Cir. 2004).

In Jennings, a lower court relied on Theofel in determining that the e-mails were in electronic storage “for purposes of backup protection.” The Supreme Court reversed, holding that the “passive inaction” involved in opening e-mail and leaving the single copy on the server cannot constitute storage for backup protection. Based on this holding, it is unclear whether any web-based e-mail communication would be protected under the SCA. Although the question of whether the e-mail could be protected under §2510(A) (“temporary intermediate storage of a wire or electronic communication”) was not raised in Jennings, it is unlikely that any opened e-mail could be said to be “intermediate storage.” The SCA’s outdated definitions are difficult to apply to electronic communications as they are used today and therefore do not adequately protect web-based communications.

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November 12th, 2012 at 8:24 am

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Supreme Court Hears Argument on Police Use of GPS Technology

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The Supreme Court heard oral arguments on Tuesday in U.S. v. Jones, where the Court considered whether tracking a vehicle on public streets with an affixed GPS device and without a warrant violates the vehicle owner’s Fourth Amendment rights. This question has received considerable academic attention, and a very thorough legal analysis of the briefing is offered by Orin Kerr on SCOTUSblog.

A fascinating part of Tuesday’s arguments was how the Justices seemed less interested in precedent and more interested in the capacity for technology like GPS to allow law enforcement to erase the distinction between the public and the private. Chief Justice Roberts first signaled the Court’s mood when he questioned whether the 1983 Supreme Court case U.S. v. Knotts is still good precedent in light of changes in technology. That case held that police tracking with a beeper inside of a portable container is not a Fourth Amendment violation. Justice Roberts noted that “the technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.” Although it is a settled proposition that surveillance via police car on public roads is acceptable, the Justices seemed to find the ability to track a car’s every movement with very little effort disturbing, with Chief Justice Roberts commenting that GPS tracking is “dramatically different” than traditional surveillance. Justice Alito shared a similar concern, specifically that computers have decreased the expectation of privacy that comes with limited police resources. And Justice Breyer captured the worries of the Court in musing that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States . . . what happened in the past is memories are fallible, computers aren’t . . . so, if you win, you suddenly produce what sounds like 1984.” Orin Kerr on The Volokh Conspiracy summarized the Court’s feeling succintly: “the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984.” Yet from the questioning, it is unclear how the case will come out, with the Court seemingly unsatisfied after oral arguments that a constitutional rule to quell their Orwellian fears had been identified.

The Court also considered whether legal limits on utilizing new technology by law enforcement should come from the courts or from legislatures. It seems that regulating the use of new technology is distinctly amenable to legislative action, with legislatures able to quickly respond to ever-changing technology. However, in a world where privacy is increasingly devalued (as evidenced by the popularity of geo-tagging and “checking-in” on social media sites), it is by no means certain that the political will exists to meaningfully protect privacy. Whether the Fourth Amendment provides this protection is a question the Supreme Court will answer next year.

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November 13th, 2011 at 8:24 pm

False Hope?

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One of the most prominent copyright/fair use cases over the last year has been artist Shepard Fairey‘s dispute with the Associated Press (AP) over his famous poster of now-President Obama during the 2008 Presidential Campaign. The poster, which featured a stylized portrait of Obama with the word “Hope” underneath, was supposedly based off of an AP photograph taken of Obama at a 2006 event organized by George Clooney on Darfur, which Fairey then modified to create the now-iconic HOPE poster. The AP claimed that because Fairey’s work for based off an AP photograph to which the AP owned the copyright, Fairey was required under copyright law to apply for permission for use of the photograph. Fairey consistently claimed that he did not profit from the poster, but instead used the proceeds to produce additional prints, and disputed the AP’s identification of the original photo as a closeup of Obama rather than a photo of both Obama and Clooney.

Fairey, who was then represented by Anthony Falzone, Executive Director of Stanford Law School’s Fair Use Project, claimed that his use of the photograph came under the “fair use” exception and thus permission was not required. Fair use hasn’t often been applied to photographs, so the issue seemed likely to become a fascinating test case, especially after Fairey filed for declaratory judgment against the AP in February 2009 seeking a determination that his use came under the doctrine of fair use.

The case was further complicated by the claims of the original photographer, Mannie Garcia, who was working under contract for the AP when he took the photograph; Garcia claimed that the copyright for the photo belonged to him, not to the AP. Garcia’s latest position in the legal skirmish is as a defendant, counterclaim plaintiff, and cross-claim plaintiff/defendant.

At the time, it seemed that Fairey had a chance of winning. Fair use disputes are resolved by a four-factor test; the four factors are:

  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market.

The first factor relates to the use of the original material; by cropping, colorizing, and reorienting Obama’s posture from the original photograph, as Fairey claimed he’d done, it’s probable that a court would have deemed Fairey’s use sufficiently transformative to satisfy that factor.

The second factor concerns the distinction between fiction and fact; since Fairey copied from something factual (a photograph from a news event) rather than something fictional (for example, a novel), it’s possible that he would have succeeded on this factor as well, since only fictional works can be copyrighted. However, the Supreme Court ruled in Feist Publications, Inc. v. Rural Telephone Service, Co., 499 U.S. 340 (1991), that only a “spark” of originality was required in order for something to come under copyright protection, it seems probable that the original photograph would have been protected by copyright. Fairey would thus have faced a tougher battle on the second factor compared to the first.

The third factor presents one of the most interesting elements of the case. The less someone uses of the original work, the better case they have for fair use. For example, if a musician copies only a few seconds from six minute song into a remix, she’ll have a stronger basis for fair use than if she uses five minutes. Since Fairey supposedly cropped out George Clooney from the original photograph, he had a fairly good position on this factor. As the LA Times noted, how often does George Clooney get cropped out of a photograph? The fourth and final factor also seemed to weigh in Fairey’s favor. Fairey’s poster did not impede the AP from selling the rights to the original photograph to newspapers and other media outlets, especially given that the photograph was over two years old by the time Fairey began selling prints of it.

Last month, the entire case took on a dramatic twist when it came to light that Fairey had lied about which photograph he’d used for the HOPE poster. Instead of using a photo of Clooney and Obama, Fairey admitted that he had used the photograph that the AP had always claimed he’d used (a closeup of Obama) and that he had deleted images and submitted false ones in connection with the lawsuit. As a result, Falzone and the Fair Use Project declared their intention to withdraw from the case, as they couldn’t ethically represent Fairey after his lies came to light. Falzone noted that he still believed in the merits of Fairey’s case; the AP, however, countered that Fairey’s admission undermined his fair use argument and that they would block the withdrawal of Falzone and the Fair Use Project. The Fair Use Project’s proposed replacements are Geoffrey Stewart, a partner at Jones Day, and William Fisher and John Palfrey of Harvard’s Berkman Center for Law and Society.

Crucially, Fairey’s admission impedes his claims under the third factor of fair use, as he did not modify the original photograph as much as he claimed and took a larger proportion of the original work. Still, Falzone’s support of Fairey’s claims even after exiting the case doesn’t seem naive; it’s conceivable that a court could still find fair use. But as many have noted, it’s hard to seek a defense that uses the word “fair” when you’ve lied about the case. The case is still going forward, but Fairey’s position is far weaker than it was a few weeks ago, though the LA Times ran an editorial this week that supports Fairey’s claims on the merits. But what could have been a fascinating test case for the status of fair use in copyright law has been muddled as a result of Fairey’s deception, and it remains unclear what this could mean for other artists working in similar ways.

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November 7th, 2009 at 12:47 am

The Perils of YouTube Filtering: Part 2

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by: Tony Bates, Associate Editor, MTTLR

Editor: Part 1 introduced the emergence of filtering as a potential solution to copyright and infringement, and examined why it fails copyright owners. This part considers the problems of filtering from the perpsective of users and Google.

2) Users

YVI is also a terrible blow to utilize who use YouTube to upload their creative efforts as well as to the Internet community at large. Although YouTube has pledged that YVI will not “impede the free and fast communication YouTube has enabled,”23 it has yet to explain how it will allow for fair use of video material.24 Here’s how the system works: When a user uploads a video, that video is run through YVI to see if there’s a match with the content in its database. If so, the video is subject to the action the rights holder has decided to apply to it—it could be blocked, “tracked” or “monetized.”25 If it is blocked, the user can contest the decision and YouTube can put the video up. It is at that point that the DMCA takedown provisions kick in. If the copyright holder wants the video taken down, it can send a takedown letter to the user (as it would under the old system).26

This is problematic in two ways. Despite YouTube’s claims regarding “free and fast communication,” it will almost surely sweep in an unacceptable level of false positives.27 As a result, it will have the effect of stifling expression. YouTube is a haven for users who use copyrighted content to create new forms of expression,28 and the technology would have to be sophisticated indeed to not block these otherwise protected forms of expression. Of course, YouTube is not required to post a video just because it doesn’t infringe a copyright. Indeed, even if YVI sweeps in what would otherwise be protected video, YouTube may delete videos it even suspects of infringement. However, to do so would be to ruin what has made YouTube great for the online community: the democratization29 of creative expression by creating a repository for content that anyone can use. If faced with a notice from YouTube that their uploaded video may be infringing,30it is likely that many users may not be willing to “put themselves in the crosshairs of movie studio lawyers”31 and may instead decide to keep their expression to themselves.32

Electronic Frontier Foundation’s Fred von Lohmann has proposed two modifications to the system that would help protect fair users. The first is to require a video and an audio match before automatically blocking content.33 The second is to determine what ratio of the uploaded video is comprised of protected content—if the ratio is low, it is likely the post counts as transformative content.34 This is a step forward, but still leaves a lot of protected expression up in the air.35 Another possible solution—to add a human component to the review process—simply won’t do. YouTube is likely unwilling to open itself up to the liability that would occur if one of its reviewers green-lights a video that turns out to be infringing. It would also be too costly and time-consuming to personally review every movie that gets posted on YouTube. The best solution, it seems, is to continue to place the burden on copyright owners to find what they believe is copyright infringement and to allow them to follow the DMCA’s procedures. YVI places an extra burden on fair use that neither the courts nor Congress has required.

3) Google

YVI is also an unnecessary and unfortunate step for Google because it does more than the law requires.36 A compelling argument can be made37 that YouTube falls well within the DMCA safe-harbor provisions.38 That is, even without YVI, YouTube could very well escape liability because of its substantial compliance with the DMCA. Viacom’s complaint is, at its heart, that YouTube is following the law too closely for its liking.39 Google’s decision to implement YVI is too large a concession to make to the copyright owners—Google is now the one responsible for finding infringing videos (and for creating and maintaining the software responsible), even though the DMCA places that burden on the copyright owners. Paradoxically, YVI could actually be used against Google: implementation of YVI shows that Google is well aware of the copyright infringement that exists on its website. By providing the filtration service, Google may be shouldering more responsibility than it’s prepared to take on. If YVI fails to flag a protected video, Google will have a harder time taking refuge in the DMCA’s safe-harbor provisions because the knowledge requirement40 clearly will have been met.

It is likely that, feeling the pressure from Viacom’s lawsuit, Google wanted to show that it was serious about copyright infringement on its website. YVI was a poor way to do this for three reasons. First, although the Supreme Court has implicitly favored attempts at filtration,41 it has by no means required it.42 Without other evidence of intent that the product be used to infringe, Grokster implies that filtration is unnecessary (although concededly helpful). Second, by implementing the software, Google may “have the practical effect of changing filtering from ‘one’ factor to ‘the’ factor that a court considers” in deciding this sort of infringement action.43 Because of Google/YouTube’s size and market presence, its decision to create YVI could likely become the industry standard. If that occurs, it will make it more difficult for smaller websites to host content because of the costs involved in developing or licensing filtration software. Third, YVI was a poor response to the Viacom lawsuit because it simply will not help Google fight claims of past infringement.44 Instead, this move looks like a signal of YouTube’s imminent decline. As copyright owners begin to develop their own content-distribution systems,45 it seems inevitable that users will begin to migrate to the websites hosting the popular content.46 YouTube became the market leader due, in part, to its hosting of copyrighted content.47 Without that content, YouTube must tread very carefully to avoid losing the users that have made it worth $1.65 billion. Implementation of YVI is a step in the opposite direction.

4) Conclusion

YVI is a bad solution for all parties concerned. I do not mean, however, to overstate the case against YVI. Undoubtedly, it will have a marked effect on cutting down on clearly infringing videos posted on YouTube, thus decreasing the number of separate acts of infringement against copyright owners. Instead, my argument is simply that YVI will not be completely effective against copyright infringement and that it is no greater a solution than the licensing system already in place.

It is also not the case that YVI will inevitably lead to the total downfall of YouTube: YouTube is popular, in part, because it is a common home for a wide range of wholly original works. YVI will surely not have an effect on that aspect of use. However, many YouTube videos incorporate copyrighted content into original works of creative expression. If one accepts the proposition that a great number of those works should properly be considered fair use,48 then YVI will end up imposing a large burden on this legitimate form of expression. Restrictions on the ability of users to use copyrighted content in the works they upload to YouTube will harm YouTube’s business model and the Internet community at large. Indeed, I believe that any undue difficulty in getting a legitimate fair use video past the system will have the ultimate effect of user migration.

This is not to say that it’s a bad thing to keep infringing works off the web: obviously, if a work is infringing it should be flagged and removed. I only mean to argue that YVI flags too much while, at the same time, failing to safeguard the interests of the copyright owners it was implemented to protect.

23  Nate Anderson, Filter This: New YouTube Filter Greeted by Concerns Over Fair Use, Ars Technica, Oct. 16, 2007.
24  Quinn, supra note 18.
25  Posting of Gigi Sohn to Public Knowledge Policy Blog (Oct. 15, 2007, 15:14 EST).
26  Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3)(a) (2006).
27  See Doctorow, supra note 17.
28  See Posting of Fred von Lohmann to EFF Deeplinks Blog, (Oct. 15, 2007).
29  For examples of this democratization phenomenon, see, e.g.,, First Try (last visited Nov. 19, 2007) (80 year-old Peter seeks to “bitch and grumble about life in general from the perspective of an old person who’s been there and done that”);, Hamlet on the Street (last visited Nov. 19, 2007) (18 year-old actor Craig Bazan from Camden, NJ performs soliloquy from Hamlet).
30  For examples of videos that might get swept up by an overbroad filtration system, see, e.g.,, Brokeback to the Future (last visited Nov. 19, 2007) (mashing together video and audio taken from Back to the Future and audio taken from Brokeback Mountain);, The Shining Recut (last visited Nov. 19, 2007) (re-editing video from The Shining with original audio).
31  Von Lohmann, supra note 28.
32  EFF has compiled a sample list of videos that would probably count as fair use but might get blocked by YVI. EFF, supra note 15.
33  See Von Lohmann, supra note 28.
34  Id.
35  See, e.g.,, Vader Sessions (last visited Nov. 19, 2007). 100% of the video is taken from Star Wars and 100% of the audio is taken from films in which James Earl Jones appears. Both video and audio are presumably copyrighted, but the YouTube video would have a compelling fair use defense due to the parodic and transformative nature of the work.
36  See Quinn, supra note 18; YouTube Video Identification Beta, supra note 11.
37  See Posting of Oscar Lara to The MTTLR Blog (Nov. 15, 2007, 2:49 EST).
38  Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(1) (2006).
39  See Complaint at 3, Viacom International, Inc. v. YouTube, Inc., No. 07CV2103 (S.D.N.Y. March 13, 2007) (“[Y]ouTube…has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.”).
40  Digital Millennium Copyright Act 17 U.S.C. § 512(c)(1)(A) (2006).
41  See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 926 (2005).
42  See id. at 939 n.12.
43  Sohn, supra note 25.
44  See Andy Greenberg, YouTube’s Filter Fails to Please, Forbes, Oct. 18, 2007.
45  Viacom, for example, just posted every “Daily Show” clip in the Jon Stewart era on its own website: The Daily Show with Jon Stewart (last visited Nov. 19, 2007).
46  Viacom is also planning a similar website for “The Colbert Report.” Brian Stelter, ‘Daily Show’ Archives Appear Online, N.Y. Times, Oct. 18, 2007. This is to say nothing of underground content distribution networks like BitTorrent.
47  For example, note the surge in YouTube searches on Google after it began hosting Saturday Night Live’s Lazy Sunday on December 17, 2005. Search of “YouTube” on Google Trends (last visited on Nov. 17, 2007).
48  For a forceful argument of this proposition, see Kurt Hunt, Note, Copyright and YouTube: Pirate’s Playground or Fair Use Forum?, 14 Mich. Telecomm. & Tech. L. Rev. (forthcoming 2007).

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December 7th, 2007 at 1:10 pm

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