1. Client Consultation The Good, The Bad, and the Guys with the Money

2. Outline Simple Client Conventional Online Plan Traditional Uses of Online Content Youtube & Google Books-minded Client Distribution vs. Respecting Other’s IP Money-Minded Client Implications of Profit Innovative Client Core Policy

3. Conservative Client meets Conservative Counsel We only want to protect our media. What should we do? If you are telling me that this is only your media you are concerned with there are license models, DRM, traditional IPR, etc…

4. Caution Wins the Day (in court) Traditional Licensing IPR We have to use a opt-in model if we acquire content by ourself People who want to share their own content have to give a license to us that gives us the right to distribute and broadcast their content Users have to sign a license, too – they are not allowed to share or copy our content other than for personal use

5. Fortune Favors the Bold Post with Impunity Unlikely under the initial plan to trigger Secondary Liability. No Contributory Infringement No Inducement

6. Caution Wins the Day (in court) DMCA – Definition of ISP Definition of “Service Provider” in §512(k)(1) covers two different types of provider – subsection (A) and (B) The Definition in §512(k)(1) isbroad (ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 623 (4th Cir 2001)) If not an (A)-provider, we could easily fulfill requirements of (B): “[…] covering providers of on-line services or network access, or the operator of facilities therefor […]” Committee Reports 105th Congress (1997-1998) House Report 105-551 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. We can use a license model like creative commons, that could be an easy way to get what you want As long as we don‘t make money with the content, we will/may still have a fair use for the infringing content

7. Right & Ability to Control Section 512(c) prohibits an ISP from receiving “a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity . . .” Addressing “Knowledge requirement”---“the right and ability to control’ the activity requires knowledge of it, which must be item-specific,” The legislative history states that “a service provider conducting a legitimate business would not be considered to receive a ‘financial benefit directly attributable to the infringing activity’ where the infringer makes the same kind of payment as non-infringing users of the provider’s service.”

8. Right & Ability to Control Advice for Clients To be eligible for safe harbor protection, our clients must satisfy the specific requirements enumerated under § 512(c). They must establish that the online storage occurs at the direction of the user and that the company does not have actual knowledge of infringement, responds expeditiously to DMCA take-down requests, and lacks financial benefits and control over the copyright infringement. Our clients should prove that their revenue was not from the infringing activity. In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one. The “right and ability to control’ the activity requires knowledge of it, which must be item-specific. Our clients could assert that, they did not aware any copyright infringement existed before right owner notification. If “red flag” identify infringing material with sufficient particularity, it must be taken down. So, the service provider must know the infringement before he can control it.

9. Substantial Non-infringing Use Sony case If capable of substantial non-infringing use, it is immune from contributory infringement liability even though it may also lead to infringing use. Original intention and sole purpose is non-infringing use, not illegal use. Evidence: So far, how many videos have been uploaded totally and how many of them have been notified and further proved as infringing use?

10. Actual and apparent knowledge According to the statutory phrases, knowledge of specific and identifiable infringements of particular items is required (not enough mere knowledge of prevalence of such activity) According to the cases, general knowledge that infringement is “ubiquitous” does not impose a duty on ISP to monitor its service.

13. Advise for Tech Companies: Have infringing users make the same types of payment as non-infringing users of the provider's service; It is safe to require a one-time set-up fee and flat periodic payments for service from a person engaging in infringing activities Also ok to base fees on size of content (bytes) or length of time accessing services In no event should a fee or advertising contract take into account the value of an infringing use or engage in price discrimination for access to infringing content!

14. Technical Requirementsfor Take-Down Notice Noticecaneitherbeexternally or internallybased Externally: OSP put on notice by copyright holders’ written notification Internally: apparentinfringement = red flag. Notification not necessary Impact of proper notification IF copyright owner sends a proper takedown notice, which complies with all of the technical requirements laid out in the statute DMCA, THEN: ISP obligated to remove or disable access to the copyright infringement in an expeditious manner. Technical requirements of the take-down notice 1) Writtennotice, 2) physical or electronic signature, 3) identification of the © work, 4) Identification of infringing work, 5) Contact info about complaining party, 6) Info to locate material 7) statement of good faith and belief 8) Authorization Time frame Withinreasonable time notifyallegedinfringer

15. Secondary Liability Sony liability if there are no significant non-infringing uses Napster Liability if there is knowledge of the infringing use & Ability to control Grokster Liable if you promote infringement in relation to your service.

16. Flowchart Does it have significant non-infringing use? no liability yet. Do you have Knowledge of the infringement? No liability yet Are you promoting infringement? Congrats You are not liable You are liable Can you control it? You are liable no yes No. No liability yet Yes. You are liable yes no yes no

17. Innovation Requires Creativity Do they know the internet isn’t tubes? That is a different story. Lets get creative and use open licensing, and be clear on how its actually being used. What we really want to do is get the widest distribution possible, even if it includes some infringing stuff.

18. Open Licensing Traditional Licensing IPR – newwrapped Opt-out model instead of an opt-in

19. Intent Matters Substantial Non-infringing use The original intention and sole purpose by creating Youtube is non-infringing use, to encourage creating and sharing audiovisual works, to promote the progress of art and increase the societal wealth, not the illegal works.

20. Filthy Lucre Making money is good, but you may lose the defense of the big FU. Here’s your options: Actually, we don’t care about protecting artists, we just want to make money!

21. Fortune Favors the Bold Fair Use

22. Pushing the Envelope - Post Cloud? The further out-there the tech, the more we just go back to core principles: The Constitution and promoting innovation! What if we have something so new, we’re outside of the internet? Like broadcasting images straight to your brain?

23. Policy No matter the unforeseeable tech problems, the fundamentals of IP can adapt. The newer the tech, the harder it is to know if you have avoided infringement, BUT it is also harder to know if you have actually infringed. Business advice – take the risk,but have a reason/defense grounded in the fundamentals first.

24. Conclusion We can do it like the Romans do – and become one of thousend boring services on the net Wecan do itthe innovative way – andrisktoget lost in litigation We can challange the law with a totally new idea – and get judged by “old school“ judges or force people to think about IPRs and how they fit into the digital age