Three Legal Disputes that Could Change How You Use the Internet in 2012

The Stop Online Piracy Act, better known as SOPA, was introduced this October in the House of Representatives. It immediately became the target of Internet activists and several prominent websites, including Google, Twitter, Facebook, Yahoo, and Zynga. H.R. 3261 is the entertainment industry’s heavy artillery aimed at the heart of Silicon Valley, establishing another battle front in the war over the use and transfer of copyright protected material on the Internet.

The flurry of organized opposition in mid-December manage to table the bill until Congress reconvenes next year, leaving SOPA as the most prominent of several pending legal disputes that could change the way the Internet and technology work in 2012.

1. SOPA
Internet Censorship or the Last Great Hope for Copyrighted Material?

SOPA, along with its Senate based cousin S. 968, the PROTECT IP Act, are the culmination of years of lobbying by the entertainment industry. Supporters are big time players in the industry – including the United States Chamber of Commerce, the Motion Picture Association of America, the Directors Guild of America, and numerous film studios – that collectively want to see copyright owners retake control of the distribution of their protected material in the digital age. Opponents of the bill liken it to the Great Firewall of China, as the proposed language could be broadly interpreted to allow the immediate take down of websites with little judicial oversight.

To understand the friction between the entertainment industry and the Internet it is important to be clear on the economic incentive to control copyright protected material. The Copyright Act governs copyright law in the United States and grants a limited monopoly of certain rights – such as the right to copy and distribute – to recorded creative expressions. The act was intended to encourage and promote the useful arts by promising legal protection to the creators of the creative expressions, and assure them compensation for their efforts. Indeed, a significant amount of revenue obtained in the entertainment industry is made through royalties and sales of protected material through official channels.

This worked great for the entertainment industry for a number of years, when making and distributing copies of protected works was difficult. However, the rapid rise of the Internet changed the game and it took the entertainment industry a long time to adapt. By the time the large scale copyright holders had established legitimate footholds online for the sale and download of their material an entire generation of Internet users had become indoctrinated in illegal downloading and transfer of protected material. Revenue dropped, and the legal battles began.

SOPA seeks to change the existing law by allowing service providers, search engines, and online payment system to immediately block access to websites that host or transfer infringing material by going directly to the Department of Justice and by-passing the the need to sue the content host entirely. Unlike the Digital Millennium Copyright Act (“DMCA”), service providers and content hosts would also be directly liable for hosting infringing material, even if unknowingly uploaded by users, without any sort of safe harbor period to take infringing material down.

How does this affect you? Opponents to SOPA claim that it would allow blanket censorship across the web and would leave the data of millions of users vulnerable to a complete access blackout. Under the broad language of the proposed statute it is arguable that an entire social network, such as Facebook or YouTube, could be taken down if even one profile on the site was found to host infringing material. Enjoy having your your Facebook profile pictures and messages stored in the Google cloud? They could be taken down with the entire site under the broadest interpretation of the statute.

The bigger websites fighting the bill also argue that it would stifle innovation, a keystone of the digital revolution of the new millennium, as the increased risk of legal liability could halt growth and force them to be extremely conservative in the competitive industries of new media and social networking. This could give other nations with less restrictive laws a chance to recruit new talent and shift some jobs overseas.

The bill will be back on Congress’s table come the new year and the battle is likely to resume. It is worth following to be aware of the debate between the two sides, and to be aware of what could be lost if the statute passes.

2. Viacom v. Google
Say Goodbye to YouTube?

With SOPA on the proverbial table, the DMCA remains the governing law of the digital land for the time. A major suit still on appeal in the Second Circuit is trying to change the safe harbor provisions that nearly every major website that hosts user content currently follows. The safe harbor provisions were built into the statute after recognizing the impracticality of requiring content hosts, such as YouTube, to monitor every single upload on their site for infringing content. Instead, the burden is on the copyright owners to find and report infringing material to the content host, who is then “safe” from civil liability so long as they take down the material in the statutory time.

Viacom v. Google centers on Viacom’s claim that Google, via their YouTube arm, built an entire industry by knowingly allowing users to upload infringing material onto their site. Viacom argues that the safe harbor provisions should not allow infringing material to be shared until they are found by the copyright owner, nor should they place the responsibility of policing the entire internet on the backs of the copyright owners while content hosts such as YouTube profit off their material.

Google has not wavered from the tried and true safe harbor stance that won them Round One of the fight in District Court. Google claims that they follow the safe harbor provisions to the letter of the law and are not liable for any infringing activity on their site. The District Court Judge found this persuasive, and was especially impressed by the speed and accuracy that identified videos were taken down by YouTube once they were reported by applicable the copyright owners.

It is likely that the Second Circuit will find the same result, as similar attacks against the safe harbor provisions have failed to persuade the bench to take stricter measures against content hosts. Still, a shock verdict could still turn the Internet upside down, and leave the YouTube’s system of easy video uploading system vulnerable to going the way of Napster.

3. Ownership of Social Media
Do You Own Your Twitter Account?

A suit filed in the Northern District of California this past July raises a tantalizing question that, like many legal issues on the Internet, has not yet been settled.

Who owns a users followers or subscribers?

In PhoneDog v. Kravtiz a popular mobile phone site based in the San Francisco Bay Area has brought suit against a former employee who continued to use a Twitter handle after he left their employment. The employee set up the handle “Phonedog_Noah” while he was with the company and, with their permission, continued to use it to communicate when the thousands of followers he had picked up over his years with the company. PhoneDog had an eventual change of heart, and claimed in their court filing that the followers were actually a client list and that the employee owed them a set price per follower per month since he had left the company.

The claim is based in trademark law, where it is necessary to protect a brand at all costs from dilution and infringement. Phonedog seeks to extend their control of their brand over every element that has their name attached, including the large Twitter following that their employee built up on his own while he was in their employment.

A counterargument against Phonedog’s claims will be that the very personal nature of a Twitter account or social networking following, when the writer and operator of the account often establishes a very personal relationship with their followers. Under that reading, the owner of the account could argue they are establishing their own brand based on their personal image. In the alternative, Noah could tie the account into publicity rights, which are governed under state law and not the Federal Lanham Act.

Observers are expecting the case to set a precedent for the ownership of social media accounts used for both work and pleasure, and perhaps even put a price on what one follower is worth. You might want to make sure your own Twitter handle is not tied to your employment, and if it is it might be wise draw out some contractual obligations ahead of time. It would be hard to lose 15,000 of your best friends along with your job, wouldn’t it?


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