Ten Questions: Intellectual Property, Copyright, and Streaming Media

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5. How do sites like YouTube get away with it?
When their users sign on, they swear to all that is holy that they own this stuff, and they control the rights. If you read the YouTube terms of use, when you take a look at that document, you give everything except your mother’s underwear, usually some kind of perpetual nonexclusive royalty-free license. In some of these agreements you agree to indemnify them.

Sitting on top of that, Congress, in all its wisdom, said, "You know, no one will ever exchange information if you’ve got to check everything out so thoroughly. So, if you are an OSP that filed for safe harbor and get a notice that someone has posted infringing material on your site, if you take the infringing material off your site, you’re protected." The term "OSP" has not been fully litigated so just who qualifies is questionable. Whether an OSP is the telephone company, the cable company, the hosting company, and/or the website owner has yet to be defined. How far down the chain the safe harbor goes we don’t quite know yet.

6. What about linking to videos?
What has been uniformly held to be legal is, if the site you’re linking to says it’s OK to link to them, then you can index their site and provide a link that brings up the linked web page as long as it’s not grouped within your framing so that you can’t tell where the source of the video is. Framing it inside your own stuff is impermissible, unless the (originating) site allows it, like YouTube. Indexing and then providing a link to the site as if it were a phonebook has been held permissible in several cases so long as you don’t make the link look like the content is yours.

7. How can I protect myself when I’m licensing content?
Let’s say you’re a media streamer and you want to have an instructional video on something or another. Somebody appears at your door. "Hi, I’m the production company." "Oh, that’s wonderful. I need some content." "I have this with these rights, and this with these rights." Someone has to go through what contracts have been signed to be sure of what you’re buying, because no matter what is written and no matter who reviews it, there are always openings. That’s why we have copyright and trademark insurance. I would investigate insurance, because you’re never really safe. They’ll insure you against claims of copyright infringements and trademark infringement provided you do certain things. I wouldn’t start a streaming business without some insurance.

8. Why is this all so complicated?
A famous judge by the name of Benjamin N. Cardozo compared conduct to law as one would compare space and time—the theory of relativity. If you have two objects and one moves and the other moves identically, is there any movement between them? The answer is no, because they’re moving relatively the same to each other. Law and conduct should strive for that. Law is always racing to keep up with conduct as it changes.

If you go back to 1909, there was a gaping hole in the Copyright Act. For some reason, player-piano rolls were not mentioned in copyright laws. The Copyright Act didn’t quite catch up to that new technology. That’s what’s happening now. We’ve got the digital age of information. Conduct is changing rapidly. Technology is changing rapidly. And the law is struggling to make no movement from the governance of this conduct so it will not lose its grip on keeping those who would steal in check, or those who are not honoring the Constitution.

The Copyright Act is a piece of work. This act changes so much and the conduct changes so much that you may read a section from year to year and not find a similar word. Also, some passages are so technical, you might read the same wording 30 times and not fully understand them.

In fact, the Copyright Act has even been brought back from the dead! There was a way you could actually lose your copyright in the 1980s. (Some horrible things happened to foreign works and to works that were published without notice.) Some works that fell into the public domain were "resurrected" in the mid-1990s and restored to full Copyright status. Wow!

At one point, sound recordings were able to be commissioned works for hire. Four times in a three-year period, Congress changed its mind. (See 17 U.S.C. 101.) The foregoing section has been changed so much that Congress entered a blurb in the statute informing judges to make nothing of the fact that at one time certain works were allowed to be commissioned works made for hire, then not, then again, then not, and so on. Congress basically said, "Forget about what has gone before and don’t try to understand what we intended to do by making so many changes."

9. How can I successfully navigate these thorny, complex issues of copyright and ownership?
I’d hire an attorney. I think it’s too complicated for somebody without experience to do it. Each individual project has its own set of parameters depending on what you own, what you don’t own, what you need to license, and what you need to license it for. Even the art of hiring someone to create things is an issue, whether it’s a work made for hire or not. The issue of ownership is tremendous.

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