As I wrote on recently, video sharing app Vine—owned by Twitter—was issued a DMCA takedown notice by representatives of recording artist Prince. I had the opportunity to speak with Colin O'Keefe of LXBN regarding the story. In the interview, I explain what happened and offer thoughts on why we must balance copyright holders’ rights with incentivizing creativity. http://youtu.be/tF87HSf0NAM

Late last month, Twitter received a DMCA takedown demand from NPG Records, Inc., Prince’s record label, to remove a six-second video hosted on Twitter’s popular new Vine application. Vine is a mobile application (currently available only on iOS systems) that allows users to create and share videos that are a maximum of six seconds long.  The relatively new social media start-up, which officially launched in early 2013 after being purchased by Twitter, also lets users comment on videos and follow other users.  Despite the six-second limit – or perhaps because of it – Vine users are creating and sharing astonishingly imaginative and innovative content via the platform (be sure to view the Editor’s Pick section). As with any content-sharing platform, however, there is the possibility of intellectual property abuse, including both trademark and copyright abuse. The Digital Millennium Copyright Act To combat online copyright infringement, the Digital Millennium Copyright Act, or DMCA, protects content providers such as Vine from liability for alleged copyright infringement (a “safe harbor”) in exchange for the provider’s strict adherence to a process for removing alleged infringing material when they receive notification of an infringement claim from a copyright holder. In March, NPG Records sent a DMCA request to Twitter demanding that eight Vines be removed.  Twitter publicly publishes every DMCA request it receives at Chilling Effects, and the NPG Records request is available here. Copyright Infringement or Fair Use? According to a tweet from the content’s creator, @ZackTeibloom, the eight Vines reportedly contained “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.” It’s not clear whether Teibloom’s content was actually infringing, or whether a de minimis or fair use defense might apply.  For example, if an average song is 3 minutes (180 seconds) long, then a full six-second clip appearing in a Vine video would be roughly 3.3% of the entirety.  But the analysis could be further complicated by other issues, including whether the Vine includes just the music (playing in the background, for example), or also includes a performance or other visual element, as at least one of Teibloom’s Vines did.  Mike Masnick at Techdirt, who has posted a YouTube video of one of the Vines, resolutely concludes that, at a minimum, the fair use defense applies. It’s unclear whether Teibloom plans to dispute NPG Records’ takedown notice, but a recent tweet suggests that in view of other concerns, including the 'no camera' policy in the building where he took the video of Prince, he will keep the content offline. Lenz v. Universal - a YouTube Takedown Notice NPG Record’s DMCA demand strikes a familiar chord.  In February 2007, Universal Music sent a takedown notice to a YouTube user who posted a twenty-nine second clip of her children dancing to Prince's “Let’s Go Crazy,” which was playing in the background.  The user argued that it was fair use and sued Universal with pro bono assistance from the Electronic Frontier Foundation.  That case may soon head to trial in the Northern District of California. The Take Home The DMCA notice from NPG Records emphasizes the challenging and ever-evolving intersection of social media and copyright.  With every new method of creating and sharing content comes not only the potential for copyright infringement, but also the potential for copyright owners to stifle the type of intellectual creativity that copyright laws are designed to protect.  Content creators, including Vine users, should aim for the proper balance of creativity and respect for copyright protection.

I recently posted "A Social Media Model Based on the Safe Harbor Provisions of the DMCA" about the copyright concerns currently being addressed by the social networking site Pinterest. Earlier this week, I had the opportunity to speak with Colin O'Keefe of LXBN about Pinterest and how it is trying to avoid allegations of copyright infringement.  While much of Pinterest's protection derives from the Digital Millenium Copyright Act, the company also attempts to shift responsibility to their users via their Terms of Use.

Pinterest is a relatively new social photo sharing website, and is currently one of the hottest spots on the Internet.  The site generates massive amounts of referral traffic, rivaling popular content sharing sites such as Twitter and YouTube.  There are roughly 11 million registered Pinterest users (a number that is growing extremely rapidly) with as much as 97% of active users being female. Users “pin” a photo to Pinterest from their own collection or from websites.  Once pinned, the photo sits inside the user's “boards,” which are organized around a particular topic such as 'home,' 'technology,' 'kids,' or 'crafts.'  When a viewer clicks the photo in Pinterest, he or she is redirected to the website from which the photo was pinned.  As a result, web-savvy businesses are using Pinterest as  traffic driver that directs highly-marketable consumers to their websites. Copyright Issues Some, however, have questioned Pinterest's model, asking whether the posting of photographs belonging to others is actually nothing more than copyright infringement.  See, for example, “Pinterest Might Be Enabling Massive Copyright Theft,” and “Pinterest: Is It A Facebook Or A Grokster?” Pinterest's Copyright Policy makes it clear that it is relying on provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) to insulate it from allegations of copyright infringement. Section 512(c) of the DMCA, for example, provides a safe harbor to online service providers (“OSP”) that store potentially-infringing material as long as they satisfy the following requirements:

• The OSP must “not receive a financial benefit directly attributable to the infringing activity;”

• The OSP must not have actual knowledge that it is hosting infringing material or be aware of facts or circumstances from which infringing activity is apparent; and

• The OSP must, upon receiving notice of copyright infringement from a copyright owner or its agent, act expeditiously to remove the purported infringing material.

Pinterest's copyright page describes the information required to put it on notice, and provides a form for reporting the alleged infringement. Pinterest Responds to Critics Aware of the copyright concerns, Pinterest recently responded to these concerns in a post on its blog entitled “Growing Up.”  In the post, Pinterest writes: “As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.” To further prevent inadvertent copyright infringement, the company also announced a snippet of code that blocks photos from websites containing the code from being pinned, although there are likely numerous ways to maneuver around the code. The Current Aftermath Pinterest's blog post has generated opinions on both sides of the issue, ranging from disbelief that the service can evade copyright infringement, to others that consider the site's policy to be “genius:”

• “Now Pinterest Is Defending Itself From Accusations Of Copyright Infringement”
• “The Genius of Pinterest's Copyright Dodge”
• “Pinterest's uneasy relationship with copyright law: what happens next”

Yet another viewpoint comes from a photographer and frequent Pinterest contributor, who argues that copyright holders should embrace the traffic driven by services such as Pinterest rather than focus on the copyright issues (see, “Why Photographers Should Stop Complaining About Copyright and Embrace Pinterest”). This viewpoint is one of the most common, as evidenced by the numerous companies and websites that encourage pinning and the resulting traffic boon regardless of the potential copyright issues involved.  Indeed, many sites have started adding a “Pin it” button to encourage the pinning of their copyright-protected photographs and graphics. The Future There's no question that Pinterest, like so many new services before it, pushes the boundaries of copyright law.  Although Pinterest's policies and prevention measures are unlikely to completely insulate it from copyright infringement lawsuits, they make it clear that the company is aware of the issues and is looking for ways to manage them. Reminder to the Higher Education Community Regarding the DMCA Much like Pinterest, most institutions of higher education qualify as an internet service provider (transmitting data) and/or an online service provider (storing data) under the DMCA.  Institutions must, however, establish and maintain the proper procedures in order to benefit from the safe harbor provisions of the DMCA.  For example, universities must have a procedure in place for receiving notice of copyright infringement from a copyright owner or its agent, and must act expeditiously to remove the purported infringing material once notice is received. Further, online service providers must designate – on its website and to the Copyright Office – an agent to receive notifications of claimed infringement.  If you’re unsure whether your university has designated an agent, the Register of Copyrights has a current directory of all designated agents available at the Directory of Service Provider Agents for Notification of Claims of Infringement.

Article: At the Chronicle Of Higher Education website, Alex Campbell reports that UNC has put in place measures to prevent and minimize unauthorized file sharing by students. Specifically, computers that have file sharing software will not be allowed to connect to the campus network unless and until that student/computer is awarded a “hall pass.” This hall pass involves a student pledge to report illegal file sharing, and apparently some education on copyright law. Interesting Quote:

The university has already seen a big drop in the number of dorm computers that use file-sharing software, from about 1,000 last year to about 50 this year. Of those 50, about half have opted for the hall pass. The other half remain quarantined and unable to access the network, officials say.

Today, most universities and colleges have their own YouTube channel where they host videos about the institution, faculty, and students.  These videos often let prospective students interact with the institution in ways not previously possible.  While the copyright status of university-created and –uploaded videos is usually obvious, recent events have shown that any YouTube channel can fall victim to false copyright infringement claims. On August 29, 2011, numerous videos from the official YouTube channels of musicians Justin Bieber, Lady Gaga, Rihanna, and others were removed by YouTube as the result of copyright infringement claims submitted by an entity called “iLCreative.” Like most online content hosts, YouTube has procedures in place that allow copyright holders to notify the host that another person has uploaded content that infringes their copyright.  Section 512 of the Digital Millennium Copyright Act, or DMCA, provides an exemption to online service providers from claims of copyright infringement if the provider puts notice and takedown procedures in place.  YouTube makes the procedure particularly easy with a Copyright Complaint Form that guides the copyright holder through the process. Unfortunately, while claimants must state under penalty of perjury that they are the actual owner of the rights in question and that the use complained of is not authorized, service providers are not arbiters of copyright claims and must respond in an automated fashion rather than analyzing the merits of each claim.  Once YouTube receives a claim, it then notifies the content provider who can provide “counter-notice” that the material does not infringe copyrights. Submitting false copyright infringement claims can have serious consequences.  Anyone submitting a claim must have a YouTube account, and false claims can result in termination of that account.  Further, section 512(f) of the DMCA subjects anyone who makes false copyright infringement claims to liability for damages, although identifying the individual and proving damages can be challenging. Shortly after they were taken down as a result of the false copyright claims, the music videos by Justin Bieber, Lady Gaga, and others were returned. The Take Home Message If your YouTube video or other online content is removed due to a copyright infringement claim, don’t panic.  Confirm that you own the copyrights or have authorization to use the content in question, and work with the service provider to return the content to the site.  In many cases the content will be returned in a matter of hours or days.