Introduction
Intellectual common refers to modes of learning where people can deposit, find, and retrieve information regularly to enhance learning. Intellectual commons enhance knowledge sharing and transfer as several different people are bound to use the information sources for intellectual purposes. The internet is the best example that explains the functions, structure, and operations of an intellectual common. Intellectual commons must be protected and nurtured since they play a very important role in making life simpler contrary to the earlier way of life, where obtaining required information required extensive research in large bulks of information sources.
Unfortunately, there are current efforts aimed at crippling the benefits that intellectual commons offer to the mass. A report by Lessig (NY Times, 2007, March 18) explained that different legal and statutory bodies have ganged up against intellectual commons. The latest attack has been related to the issue of copyrights where producers argue that the intellectual commons have infringed their copyrights and patents. The threat to intellectual commons has a long history. As De George (2003) explained, there was high opposition to the development and use of the VCR from the TV industries and movie houses who felt that the new device was a threat to their business. Therefore, Lessig (2010), observation has not been a new phenomenon but a trend has been used over time to suppress the intellectual commons.
Previously according to Lessig (2010), the issue of copyrights was left to legislation by the senate only. The senate had to vote to pass, amend, or have an effect on any law concerning copyright, and since the senate has a large number of representatives; it required hundreds of votes to affect any law concerning the copyrights. Lessig (2010) issue is about the involvement of the supreme courts in making rulings with a heavy bearing on the direction of copyright laws. Traditionally, courts have refrained from making any ruling that affected the copyright laws, and any time such a case emerged the courts could refer the complaint to the senate. The latest move by the courts to rule on such cases would create a worrying trend where many copyrights and patent owners would stream into the judiciary corridors to quash the use of their products in the intellectual commons. With the Senate and the supreme courts targeting the intellectual commons in different directions, the latter will soon be in an information bankruptcy leading to its imminent closure or lack of useful information. The intellectual common would therefore disappear gradually.
In addition to saving the intellectual commons through political movements, as Boyle’s argued, such a body would also be required to make the necessary regulations concerning the use and content allowed in the intellectual common. As Derek (2009) argued, there should be someone to monitor the ethics and limitations of technology to ensure a sustainable future as technology advances. A political body would air the grievances of the common intellectual owners as well as listen to the claims made by the copyrights holders to strike a balance between the two extremes. If the intellectual commons were completely liberalized, there would be more harm also as explained by Derek (2009). According to Healey (2008), many patent owners, producers, and other interested parties have in the recent past raised a lot of concern about the file sharing and downloading of content from the internet. Healer (2008) explained that many have described the act of file sharing as theft just like any other kind of theft since the producer does not benefit from their work while the consumer enjoys the product. In fact, many producers have lamented the government for doing very little to curb what they have termed as intellectual theft. They have been calling for checks to ensure that file-sharing has been restricted and the consumer pays for the products when downloading.
The above debate raises several issues. First, the producers have been very vocal in using the same internet in promoting their products. Actually, the same producers have specific sources that one can access the content free. To call file sharing theft cannot be appropriate in that, unlike in other forms of theft where the owner is denied the right to use the product, file sharing does not affect the original file and the consumer leaves everything intact as they found them. Moreover, it would be important for the producers to put in place measures that would ensure that their contents have not been downloaded freely; and this includes avoidance of using the internet services. Therefore, the internet services instead of offering solutions have created problems for such producers and patent owners who feel cheated and robbed of their efforts.
Copy right laws
The above problems have raised a new way of approaching infringing content on the internet through litigation methods, where it might force the infringing party to withdraw the content or take other measures as might seem necessary. Copyright laws to a large extent, therefore, provide a form of incentive that would encourage producers to create literature, music, software, and other creative media by ensuring that the owner would be liable for the gains accruing from such creativity in the work. An infringement of this copyright is what is in most cases termed as piracy. It amounts to unlawful or illegal copying of the above-named creative media. It is therefore an infringement of the monopoly of the producer to distribute the created work, thereby gaining in material terms the proceeds accruing from the sales and other indirect revenues from the products. Before undertaking a deep insight into the chilling effects and the take over letters, it would be of utmost importance to explain further the difference between copying and piracy. According to Simpson & Weiser (2008), not all copying will amount to piracy.
There are several instances that copying might be legal and not amount to piracy. The software might be legally copied if such a copy that would be obtained has an important influence or is essential to the effective performance of the computer program. It means that, if a program or software has to be copied directly to the hard disk of personal or other computers to enable effective performance, such copying would be allowed and does not amount to piracy. Copying of the program in the hard disk while installation is proceeding would be allowed since the copy in most cases would be automatically erased after installation is complete. Installations and modifications targeting certain devices or customizations such as installing a printer driver or other copying to the limit which the software allows are not concerned as piracy as Simpson & Weiser (2008) explained.
The second case of lawful copying involves the making of a backup on a storage media in order to ensure safe storage of the original copy. However, according to Simpson & Weiser (2008), both copies should not be in use at the same time, and the backup should be destroyed immediately after the original has been sold. This however is only allowed to the owners of the software and not for licensed parties. Some software, music, and other forms of media are marked as within the public domain and an agreement might not be necessary when copying or downloading such software. Simpson & Weiser (2008) explained free software that has been released to the public domain to be software that the owner has released to be copied by whomever, and in any form. Such software will however indicate a public domain mark, meaning that it has been certified for general public use by the owner. These are the general cases where copyright might not be taken as to be infringed or that do not amount to piracy on the part of the second party. Any other copying of copyrighted material would thus amount to copyright infringement and be prone to litigation or non-litigation measures such as chilling effects and take-over notices.
Chilling effects of takedown policies
Chilling effects according to Lipson & Day (2005) refers to ways and policies as well as the practices by the business, government, or any other organization and institution, that would prevent and impede the flow of information, prohibit the rights of speech as allowed by the first amendment or prevent the exercise of fair use under the U.S copyright act. The flow of information might not be necessary digital and might assume any other form. As Porter (2005) explained, a good example in the impeding free flow of information that might amount to an effect would be the withholding of information relating to the September attack on the Twin Towers that resulted in heavy-reaching destruction in lives and property. The government according to the chilling effect as Porter (2005) explained has the authority and mandate to impede on any information that would be considered as safeguarding the national security under Chilling Effect. The chilling effect might be affected in terms of direct censorship by the authority or any other body relevant in impeding the flow of information, but the information is not in many cases abolished but the discouragement of using such information is put in place due to the above-named reasons. The discouragement in the use of such information might be through implied, actual blocking to access of such information or through threats that might prevent the free flow of the information. Several laws have been enacted recently to impede the flow of such information through the internet through threats of litigation, or in progress litigation.
Porter (2005) further explained that the culture of information chill has not been a new phenomenon, but has been in place since the mid-1960s. The producers of patented content and other products recognized the threat that was posed by the development of the World Wide Web and had to devise their own ways through which they could protect their rights of parenting online.
This has over time led to the use of the little-known cease and desist letters (would be discussed later) in issuing threats of litigation to the parties infringing on such patented rights. Chilling actions have in most cases targeted websites that foreshow the products and services of such organizations or individuals with deep linking options without prior permission from the owner or the right owners. Search engines according to Porter (2005) have also been on the threat of chilling effects due to deep linking their products or sites as well as some church-related activities that directly link the products of such organizations with an aim of directly being critical on the same.
Cease and Desist letters
A cease and desist letter is a warning prepared and sent by a party who feels that their copyrights are under threat by a second party and is sent to notify the infringer of the rights to the property infringed as well as demanding that the infringer desists from any further infringement on the property in question. As Bouchoux (2008) explained, a cease-desist letter might be sent to the infringing party to either request the party to suspend any further infringement of the copyright, to open an avenue that would find the two parties in a business arrangement such as a license agreement between the parties under some laid down agreements or either to provide notice to the infringer of the patent as well as the infringement accruing, which might be a warning to the infringer of their liability to pay heavy fines and damages to the rights owner due to infringement. As Goettel (2010) explained, a cease and desist order is prepared by a legal authority under the instruction of the rights holder, when the judge has found enough grounds on an abuse or infringement case in the claims of the rights holder. It is therefore issued to caution against further damages to the rights holder. Other government bodies might also be allowed to issue the cease desist orders on behalf of the claimant. Goettel (2010) further explained that a cease desist order might also be issued in case of slander, libel, trademark, and copyright infringement. It is therefore aimed at warning the infringer of the rights and damages suffered by the rights holder as a result of their infringing actions on the patented work.
Bouchoux (2008) explained that the cease and desist letter although a warning to the infringer on the damages suffered by the patent owner, might also be a bargaining platform where the parties might negotiate over a license to form a business venture involving both the parties. This might be the condition where the rights holder identifies the potential of improvement on their rights that might be more relevant to the market demands or have a higher potential in the market and would call for a joint venture where one party presents the rights, while the other might present the idea to improve patented rights. As Bouchoux (2008) explained, the letter should not portray any intention to litigate the issue and should be prepared in a very civil way. Threats are in most cases not encouraged to be included in such letters and the language used should not indicate any urgency on the part of the infringer to respond or act on such a letter. This is because; as Bouchoux (2008) explained threats passed through the letter may lead the infringer to rush to the courts for declaratory judgment. It means that a letter posing threats to the infringer will trigger injunctions on the part of the infringer stopping the rights owner from claiming part or the entire rights on the property. Therefore, it should be crafted such as to identify the claims to the infringer, explaining the patent and as explained above, it might be helpful to invite the infringer to share the rights and patent. It should be therefore crafted in such a way that the infringer will ignore it on receipt, and would in most cases continue to infringe on the rights due to lack of urgency on the claim by the patent owner. Therefore the reluctance and lack of urgency would have a better chance to rush to the courts for protection of their rights in the surprise of the infringer. It would therefore allow a chance for the patent owner to effectively arrange for compensation on the damages caused by the infringer on the patent, through the courts.
Takedown Notice
Under the Digital Millennium Copyright Act (DMCA) requires the owner of a copyright that is being infringed to make several statements that should be made under the penalty of perjury. It requires that the rights owner cannot in any way misrepresent the claim, and the claims have to be actually and critically defined to warrant a takedown notice being issued by the courts or the infringing party. Section 512 (f) of DMCA according to Packard (2010), enables the infringing party to file a suit to the effect that the rights owner failed to substantiate any infringing act on the part of the ‘supposed infringer.’ This may lead to penalties on the part of the rights owner under this section if the claim on the infringement of the rights is not accurately described. A takedown notice is issued by a court of law based on this evidence. It is a notice issued to the infringer to strike out or remove the contents that are considered as infringing or are under litigation from the web, or any other publications.
Snead (2007) explained several steps necessary to the issuance of a takedown notice; that is the issues that would adequately allow the claimant to accurately present a claim on the infringed work thereby leading to an action of removing the whole of part of the information, blocking the site or any other relevant action that might prevent further infringement of such content. The first requirement would be a signature either electrical or physical from the party that is allowed to work on behalf of the owner of the rights under contention. To add to the above points, there is some information like a very precise identification of the work that has been claimed to be infringed or the number of works that have been infringed in a single or one online page.
These works are covered under a single notification and a representative of such work at the sight in question (Snead 2007). In addition, the rights owner has to adequately identify the work that is claimed to have been infringed and would be required to be removed by the infringer on a takedown notice, as well as enough information that would allow the infringer to locate and access the infringing material. The claimant has also to provide enough information that would allow the service provider to locate the infringing party as explained by Snead (2007). When the claimant tries to present his or her case, he or she should do it in good faith so that the parties involved would have the confidence to believe in what he or she is saying. This will also make the parties be sure that the various materials presented haven’t been authorized by the copyright owner, its agent, or the law. Snead (2007) further explained that the claimant has to be sure that the information he or she presents for the claim is accurate. It should also be under the penalty of perjury that only the claiming party is under authority to act on behalf of the owner on the exclusive right under infringement (Sneed, 2007).
The above conditions have to be necessary for a notice of takedown, which entails striking out the parts under claim for the infringing party’s content, has to be issued. As earlier explained, the infringing party would file a suit in case the claimant does not adequately specify the above information that would lastly lead to a takedown. Having elaborated on the various issues that would amount to copyright infringement and the steps to be taken to correct such situations, it would be necessary to further identify the cases under which the above are applied. In addition, it would be important to outline the effectiveness and the appropriateness of litigation as compared to the above methods that are in most cases carried out outside the court corridors.
Litigation vs. chilling in free speech
Chilling
According to the above description of out-of-court dispute resolutions on a specific property or rights, it is evident that to a large extent, chilling through takedown has higher ramifications towards the free flow of information compared to litigation methods where courts are involved. This is because; chilling as earlier explained involves barring or impeding the free flow of information to the public due to several factors that might be defended by the chilling party as explained above. As Lipson & Day (2005) explained, the U.S government went a notch higher to chill information on the terrorist acts in the country and the FBI was the only party that was allowed access to the same information in the country. This made it hard for information sharing within the security circles, and although the security bodies were aware to some extent of the Twin Tower attack, it could not be prevented due to the high rate of chilling that the government intelligence reports are handled with (Lipson & Day, 2005). The high level of secrecy in out-of-court procedures to bar information from circulating therefore as explained above had a serious repercussion to the country where many lives and great losses in investments were suffered after the attack. The flow of information within the security circles could have enabled them to piece together the various bits that were available concerning terrorist acts, and it could have prevented or reduced the impact significantly.
Censorship might be considered as a method through which chilling is obtained through the takedown method by authorities. Censoring is the deliberate action to prevent certain individuals from receiving a certain type of information from a specific source. This is achieved by routing all the communication channels linking such people to a specific server where the information considered as harmful is filtered and removed in a takedown form of chilling. Removing such information might be considered to be a forceful takedown, since governments or other authorities strike out part of the information being circulated, to impede the free flow of information. Censoring is also achieved through blocking certain channels such as the websites, deleting some information from communication channels, or searching for specific terms or words in information streams to block the information from getting to the intended audience. Basically censoring amounts to curtailing the freedom of the audience to free information which would be considered as human rights abuse. Censoring might be allowed in some circumstances such as in schools and in homes but a blanket, censoring ideology amounts to a gross impediment to the flow of information.
According to Electronic Frontiers Australia (2006), there is a general practice of censoring information in a takedown method from the internet source in Australia by the Australian government. The argument used to support such censoring in Australia is that the government fails short of laws and regulations to control the contents being circulated on the internet. Although the government does not have full autonomy in controlling all internet content, it would be taken as a threat to democracy when any government uses such excuses to control the free flow of information. According to Guillen & Suarez (2005), authoritarian and dictatorial regimes quote these excuses whenever they plan to sensor the information channels to maintain their unthreatened dominance. Therefore censoring would be equated to the loss of democratic space in speech and information gathering. The most recent case involving the above practices was reported in China where there was an international outcry resulting from the censoring practices by the government.
Apart form censoring internet services, other information channels such as television and radio stations as well as the print media have in been victims of censoring practices many cases. In fact, Guillen & Suarez (2005) argued that it is considered easier to sensor information channels such as broadcasting and the print media compared to the internet. This is because, the internet has been extensively decentralized, and this makes it extremely difficult to control, since information comes from multiple sources. White (1997) argues that, due to censorship the opinion or information that usually gets to the public affects all dimensions of the society’s lives. This includes; how the society behaves, their dimension of thinking and even the content that they can talk or read.
As explained in the cases above chilling, of information by the takedown process by authority has been a widely practiced culture in many arenas with many governments favoring the method to court litigation, which could be used when such information is leaked through a particular media. It should be noted that the DCMA does not play any part in this case and the authorities do not takedown the contents to contest any copyright infringement but to stop information that they consider harmful or endangering to the public order from getting to the public domain. The methods that could be used in counter notification as applied in MCDA are not applicable nor is it possible for litigation methods to be applied, although as Packard (2010) explained, there are several civil and professional bodies that have been formed to challenge various forms of takedown by authorities. These bodies have their websites that are used to list all the pages that have been taken down by the authorities or relevant bodies, with direct explanation as to the reasons leading to the takedown. This form of takedown as an out of court method has been proved to be very critical in impeding the flow of information to the public compared to the litigation method as would be explained later.
In addition to censorship which is a means of chilling information through takedown method, out of court methods such as schilling have other far reaching implications. Packard (2010) explained another dimension that letters of cease and desist may result to. The case of Brain Burton who used the Jay-Z’s the black album and remixed with the Beatles white album to create a new album the Grey Album has been given as a good case that would portray the disadvantages of using out of court methods such as the cease and desist letters that are written to warn the infringer on the claim. As Packard (2010) explained, the new CD released by Burton received a lot of criticism from the relevant production houses which were the rolling stone, Beatle’s recordings as well as Sony/ATM which are the owners of the rights too the Beatles compositions and albums. Burton later received a cease desist letter from Rolling stone as well as the other production houses named above. Burton on receiving the letter desist from recording the album, but the album created another major problem as concerning the public and Burton’s fans who went on a rampage. Immediately after Burton stopped producing the recordings due to the cease- desist notice, the fans created more than 300 websites to protest against the EMI and other recordings on barring Burton from the proceeding with the infringing material. Many fans therefore, as a civil disobedience distributed thousands of the albums over the web and as Packard (2010) further explained. As a way to prevent the civil disobedience, EMI further sent various letters of cease- desist as well as takedown letters to the internet service providers that were involved in the distribution of the copyrighted material. Although he ISP reacted by taking down such pages, it was too late and the damage had already been don to the content. It therefore brought another front that represented a serious congruency between the advancement in technology as well as the laws that make copyright laws harder to implement.
As concerning the above case, various issues come out clearly. Incase a cease-desist letter is sent already when the content has been presented to the public, the public in most cases would respond by challenging the decision and the results would be in most cases disastrous. Such a tussle brings to light more interested parties who involve themselves in the tussle for the interest and curiosity in the content that might have caused such disagreements. This is directly what happened in the Burton case, and although as Packard (2010) explained, Burton refrained from infringing the content but the fans had to reciprocate to the decision taken. The takedown decisions although given to the Internet Service Providers could not help much since the public had already made the damage. The right owners therefore suffered great losses, due to the use of out of court measures to claim their rights. The method might therefore be considered not to be an effective method in claiming patent rights.
As earlier explained, Snead (2007) described another disadvantage of using out-of-court methods in copyright protection as the counter litigation that might result from the improper filling of the claims, to request a takedown order on the infringing content. Although a claim might be genuine, a slight mistake on the part of the claimant might be costly in that, in addition to losing the claim, the infringer of such rights might file a suit regarding the same in a court of law. It would therefore act as a double loss to the claimant under section 512(f) of the DMCA, which was passed and affected in 1998. This has however been explained as a way to ensure that claimants only request for genuine claims on infringed content and avoids any case of producers requesting such claims on rivalry or without many bases.
Litigation and flow of information
The out-of-court methods such as takedown, chilling, and cease-desist letters have been found to have numerous ramifications, which in most cases have serious impediments to the flow of information as explained above. Censoring as explained above has been described as a form of out-of-court method to impede the free flow of information. Court cases when used to challenge copyrighted or damaging information might to a large extent be said to be milder to the flow of information. In most cases, unlike in the out-of-court methods where the whole source of information such as a website might be struck out, court cases require a judge to apply the necessary laws to decide whether the content would amount to an infringement or not. The out of court methods might be taken beyond limits that the claim would genuinely be allowed to cover, and which might not be under infringement and as Lipson & Day (2005) explained, any producer who has received a cease-desist letter or a chilling note would fear to proceed with such supposed infringement. This would be due to the cumbersome process involved in determining the owner of copyright as well as the prohibitive costs involved. This would actually affect the weaker producers who do not have financial muscles to settle out with more stable and financially sound organizations. It, therefore, means that the producer may desist due to fear and lack of financial muscle rather than due to the presence of a genuine infringement claim. The court thorough litigation however has enough reprieves since most cases might end up in favor of the ‘supposed infringer’. It means that the court has to be critically sure of the part under contention to be an infringement of the copyright laws for it to give a decision on the same to the claimant. This method is therefore one of the best ways through which copyrights or damaging information might be addressed without affecting the free flow of information.
Whereas in most cases linking in the web pages has been considered as an infringement on the part of the claimant, and in sometimes letters of takedown drawn to the infringer, the courts have in some cases ruled contrary to this. As Packard (2010) explained, Harry Hupp a U.S. District Court judge ruled to the contrary of the above in a decision that has been withheld by many courts today. In the case of Ticketmaster v. Tickets.com (2000) the judge ruled that hyperlinking could not amount to an infringement of the Copyright Act, since in hyperlinking, no direct copying is involved. The judge in the ruling extended the right to flow of information further and noted that infringement cannot be taken literary as the use of a second party content without direct copying. However, a court of appeal later in a case of Universal v. Corley as Packard (2010) explained hyperlinking as a way to infringement. The U.S Court of Appeal considered hyperlinks as a form of speech. However, the court gave a more specific interpretation of infringement in a case concerning circumvention technology. The court however as Packard (2010) explained that intent to harm in a hyperlink might not be enough proof to overcome the First Amendment protection of hyperlinks. The Court of appeal rather left the determination of the choice between impairing communication and tolerating the decryption in the hyperlinks to the senate to decide. The court, therefore, offered a broader interpretation and was careful not to tamper with the flow of information as could be the case with the previously explained method of the court of court copyright determination.
In another case involving the protection of the flow of information through litigation concerning the copyrights, the Ninth Circuit of appeals in a case of Kelly v. Arriba Soft (2003), passed a judgment that the use of thumbnails in the hyperlinks might not be a case of infringement and was fair enough. The courts again in this case were very careful as to maintain the freedom in the flow of information while at the same time explaining the extent as to which would be considered as an infringement of copyrighted material. According to Hatchman (2010) many copyright and patent holders have lately embraced new trends that they have tried to lump up many cases of infringement with unknown defendants in a single case, and litigate against copyright infringement by such groups of individuals, this has been explained as a method being applied by the copyright holders to cast their nets wide to catch as many infringers as possible while at the same time failing to adequately to present individual cases on such infringement. The federal court judge Preston Bailey has been credited for disallowing the copyright holders to abuse the copyright infringement claims through subpoenas against file-sharers who sometimes add up to be large groups of people. As Hatchman (2010) explained, the judge was overwhelmingly hailed by the Electronic Frontier Foundation as well as other civil rights groups for refusing to allow the copyright trolls, a method that has been extensively used by many copyright holders to extract more settlements. In this case, the holders have over the rime developed a method through which they levy cases against many unnamed defendants so as to extract as much settlement as possible in the cases from the defendants. Similar cases have been reported in Washington and Chicago involving movies and music files that have been reported to be shared against copyright laws on the web.
The above ruling by judges over copyright laws in the court portrays the mischievous actions that many producers might undertake to ensure settlement of claims. It means that, the producers to a large extent might be interested more in the cash rather than the copyrighted materials and thus have began a trend to incorporate many unnamed defendants to capture the settlement funds. The judges however rejected this as an abuse of judicial services through shoddy and unfair tactics that have been geared at ensuring that the plaintiffs play according to the rules. The judges by rejecting this assured the public that the judicially has to stand up to protect both the public against the unfair treatment by the claimants, by allowing only solid and justifiable evidence on the abuse of copyright laws in any case. This might be difficult to ensure in the out of court methods, where the claimant has the hand in preparing the cease- desist letters, takedown orders and claims as well as chilling. The rights owners in the out of court methods have the final say on any case they consider as infringing, but a court would delve further into the facts as the above cases portray, to indicate whether any case of abuse has been established accordingly. It therefore means that the courts have more room to allow the free flow of information and would take the steps necessary to balance between free flow of information with rights owners’ interests as indicated above.
YouTube takedown policy
YouTube as well known allows the public to upload videos and other contents in sharing files that are in most cases not solicited or verified by the service provider. Such uploading and downloading of files in most cases leads to unlawful use of copyright materials by the fans, and hence the company has to have a policy through which it has to ensure that all the fans adhere to the copyright laws as well as other regulations that might be covered under DMCA, to avoid litigations from the patent owners concerning infringement of their rights. According to UCLA (2010) there are several conditions that might force the company to takedown the uploaded content from their service. The conditions which are well refereed to as the YouTube takedown policy require that; whenever the sponsoring party or the owner of he content instructs YouTube to takedown any content, then the company has to comply with such a directive. Another case according to UCLA, that would necessitate a takedown would be the receipt of a claim or complaint or discovers that any uploaded video grossly violates the intellectual property rights as well as any rights that is claimed by a third party. This would lead to a takedown unless the issue is resolved by the parties involved. Any video according to UCLA (2010) that violates the law or is considered as pornographic or obscene has to be taken down unless any of these claims has been settled. The last condition would be when the company runs into various operational constraints, it might lead to a situation where the company would be forced to takedown videos but has to email the owners in such a case. According to UCLA (2010) the policies are grouped into three different classifications. These are the IP concerns and copyright compliance which requires that all the party respect and observe the intellectual property as well as the copyright laws. The other policy would involve the content provider request as well as the operational constraints as earlier explained. These policies are used by the company to ensure that copyright laws are observed and to avoid litigation from various interested copyright owners under liability of copyright to extents not covered under DMCA in safe harbors provision as would be explained later.
As Strowel (2009) explained, the ISP must cooperate with the rights owners and take down any content that will have been proved to be an abuse of copyright laws or that has been proved to be against the DMCA of 1998. The ISPs as well as the rightful owners as Strowel (2009) explained have overseen a harmonious operation that involves respect and acting on the owner’s claims through takedown process as well as notices, a condition which has ensured that many of the ISPs enjoy the benefits and the provisions of Safe Harbors as provided by the DMCA. Interesting phenomena however may arise where the rights owner moves to court for litigation involving the abuse of rights and copyright laws where the service provider violates the provisions and the extent to which safe harbors are applicable. A good case of the above is the Viacom v. YouTube case.
The above case according to Strowel (2009) would be used to test the strengths or weaknesses of DMCA safe harbor, and many observers have predicted a case where the case would be referred to the Congress for direction since the same body is credited with affecting the DMCA of 1998. The provision on the notice of takedown to the ISP by owners under DMCA however has been tough for claims that have not been well substantiated. An example of this would be the online Policy Group v. Diebold, Inc. [2004] 2d 1195. The plaintiff that was the online policy, in this case, misrepresented their claims knowingly and used the same claim to sanction the ISP for a takedown. However, the case under CDMA 512(f) indicated that the claim was not well presented and instead of a takedown notice to be implemented, the defendant had to sue the company for the wrongful presentation of the case in which the ISP company wore the damages. The above case, therefore, requires that, before a claim has to be entered by the plaintiff, the facts in the claims have to be well presented and accurate enough to avoid counter litigation where the defendant gets a hand to sue the plaintiff on the damages and wrongful presentation of facts under section 512(f) of CDMA.
The counter-notice
As explained above, any ISP including the YouTube Company would take down any material that has been determined to be infringing against the rights of the owner or against the copyright and intellectual laws, even before the subscriber to that service gets a chance to present their case challenging the takedown decision. However, cases might arise where the parent or the subscriber of the content that has been taken down objects to the takedown action calming their content to e original and not infringing on any other copyright. This sets the stage for another duel between the claimant and the subscriber, and there has to be a process of ensuring justice for both parties. As Loraar (2002) explained, the ISP under 512(g) has to ensure that the owner of the material that has been taken down has been alerted of the action in time. Contested copyright has then to be sent to the supposed owner of the copyright, who would have issued a takedown notice to the ISP company.
The notice has to specify the contention by the subscriber, indicating that the ISP will halt the takedown order in 10 days’ time due to the contested action by the subscriber to the service provider indicating their intentions to challenge further the copyright with the supposed copyright owner in a process explained below. The service provider, in this case, should replace the material after 10 days and not more than 14 days after a counter-notice unless the service company receives a notice from the party requesting a takedown on a suit filed in a court of law, restraining the subscriber from engaging in any activity that would be considered as infringing on the material in the ISP’s system under 512 (g) (Lessig, 2007). Therefore, proof of a suit filed in a court of law would be required on the part of the owner requesting a takedown to prevent the subscriber from acting on the material in any way that would be considered infringing. The service provider on receiving proof of the case filed in a court would then halt any putback action until the contention is resolved by a court of law or settled in any other way possible. This ensures that the company plays safe to both their clients as well s the rights owners and avoids unnecessary suites on the takedown of contested materials.
The putback action was, however, an amendment as Loraar (2002) explained by the members of the committee who felt that the provisions of takedown notices were very strong and gave the rights owners a monopoly to request a takedown order without giving the subscriber a chance to answer to the allegations against them. The takedown orders were, in addition, giving the ISP an outright hand to takedown any material contested without an effective notification to the subscriber, whose material might be taken down through such decisions or orders to the service provider. According to Laraar (2002), the procedures of notifying the subscriber have been however very weak in that, the ISP Company might be under no obligation to carry out a detailed search on the information of the subscriber to notify on a takedown notice. The service provider might only use the information provided by the rights owner to communicate to the subscriber, which in most cases is done through an email to the subscriber.
The steps involved in a counter notice would include writing a counter notice communication to the service provider clearly indicating the following as explained by Laraar (2002); a signature of the subscriber that has to be electrical or physical, the appropriate identification of the material that has been taken down or from which access has been barred as well as the location that the material appeared before its removal by the ISP. Also, the subscriber has to present a statement made under the statement of perjury to the effect that, the subscriber is in good faith that the material was disabled, removed or barred by either mistake or misidentification of the material Laraar (2002). The subscriber in addition has to provide the correct names, address, the telephone number a statement that the subscriber fully consents to the jurisdiction of Federal District Court in the judicial court district of the address or the judicial district that the subscriber might be located Laraar (2002). The subscriber has to indicate whether they would accept the note of process from the party claiming an infringement or their agents. In this case also, section 512 (f) applies to the best practices in establishing the liability of a party that has misrepresented a false claim or indicates that the content was removed by mistake thereby indicating a contention to the rights of the other party. This has also been included to ensure that those who infringe the rights of others do not hide under this section on ulterior motives or without a good basis to defend their contention.
Safe harbor
Safe harbor is a provision that has been granted to search engines and service providers under the DMCA to exempt them from liability on copyright infringement incase some content in their accounts is found to be infringing without the account owner’s prior knowledge that the material is against the copyright laws. Schwabach (2006) explained that a service provider or a search engine has to be eligible for four types of safe protections against liability for copyright infringement. These are the transitory communications safe harbor, the information storage safe harbor, the system catching safe harbor and information location tools safe harbor, which is much suited to the search engines.
One of the conditions that the search engines have to ensure to avoid liability of infringement would be to ensure that materials stored under the accounts are continuously refreshed and it must not alter in any way the material and it has to keep the hit technology that offers feedback to the owner of such material intact and with no any interference. YouTube to a large extent would be explained to be enjoying the information storage safe harbor. In this case, as Schwabach (2006) explained, the service provider offers storage of materials that are searched through search engines on their own accord. Under the safe harbor, it is required that the service provider should not have prior information on the infringing content in their database, and when the knowledge is brought to their attention, the service provider has to act expeditiously to correct and remove such materials from their sites under section 512(c).
According to Stamatoudi (2010) under the DMCA section 512(c) there are several conditions that have to be met for such a company or service provider to be allowed to enjoy the safe harbor. The service provider has to prove that there was no prior knowledge on the availability of the infringing materials on their service. Since the service provider does not have to go through their client’s contents, it is assumed that there would be a high likelihood of infringing materials being taken into their service without their prior knowledge. The safe harbor, therefore, recognizes this fact. However, it is also required that the service provider upon notification of such infringing material in their service by the rights owners have to act in the shortest time possible and implement a takedown notice on such pages, without prior notification to the subscriber. This has been taken as a precaution by many service providers who require that the subscriber challenges the takedown afterward rather than risk liability of withholding infringed content.
Since the above provision might be misused by competitors and other business persons who might use the takedown notifications for unhealthy business competition operations, the DMCA, therefore under section 512 (f) provided tough conditions that have to be met by the claimant before a takedown is implemented as explained before. The service provider such as YouTube under the safe harbor must not benefit directly from money generated through the content that contains the infringed materials. However, advertisements are exempted from this since they are independent of the content held by the service provider. The term innocent service provider, therefore, comes to play.
The case of YouTube vs. Viacom clearly brings out the extent to which the safe harbor provision under section 512 (c) would be limited. In this case, the plaintiff (Viacom), claimed that the service provider (YouTube) had prior knowledge of the infringing material, gained financially from such material, and effectively refused to control the content although it was within the service provider ability to control such information. The safe harbor under section 512(c) of DMCA is very clear on this fact, and the privileges that a service provider enjoyed of which according to the case, YouTube had grossly infringed the rights to enjoy the safe harbor under this section.
Conclusion
The takedown method of information chill as can be viewed from the YouTube v. Viacom case has a high magnitude in determining the copyright disputes involving infringement. Any service provider has to ensure that the provisions of safe harbors have been well articulated and followed to the latter to avoid any liability that is affected due to a copyright infringement case. The above case might be considered as a case where the service provider ignored the provisions and limitations of the safe harbors since as explained, the service provider earned money from the infringed content, was aware well in time, and refused to take control of the situation in a takedown action. It, therefore, requires strict adherence to the provisions of DMCA which has a great bearing on the directions that the cases would take.
Copyright infringement is a serious offense and the infringer might be forced to pay heavily on the damages and losses incurred by the patent owner, especially if a resist desist letter is not respected so as to desist from any further infringement. In case the subscriber has contentions on the notice of takedown claiming that the patent has been wrongfully presented, the DCMA presents a powerful tool that all the contention from the subscriber or the owner might be addressed. These rules as presented under DCMA have been described to be very strict and any fault on any part might have a serious consequence. The strictness is a guard against misuse of the provisions. However, the takedown and resist desist methods might be considered as having more and serious impediments to the flow of information compared to the court litigation methods.
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