Sunday, June 24, 2007

Drama Chipmunks/Prairie Dogs & the DMCA

(Crossposted from the American Constitution Society :: Columbia Law School)

I've divided this post into two parts for the benefit of those of us whose love of the internet does not translate into an appreciation of US internet law. Part I discusses a dramatic rodent capturing the attention of the internet. Part II discusses the law surrounding this rodent.

Part I: Dramatic Rodents on the Internet

The 5-second video below was originally titled "Drama Chipmunk" (I guess it's actually a prairie dog) and appeared on YouTube a little over five days ago:


(In case you're reading this post sometime after, say, July 1, 2007, I suspect that the clip will be removed — for reasons that are described in the law section below. If the video link doesn't work, Google the title of the clip you will find it.)

Since then, this dramatic little beast's performance has been viewed by more than 500,000 people. It has inspired a t-shirt. It has spawned numerous imitations and parodies, many of which are hilarious.

...it may or may not be on YouTube illegally.



Part II: The Law of Dramatic Rodents on the Internet (5-minute version)

When I first saw the Drama Chipmunk/Prairie Dog, I suspected that it was one of the few videos posted to YouTube where the person posting the video actually had done so legally.

There are 2 kinds of videos that can be legally posted on YouTube. For all the other kinds of videos on YouTube – where the posting of the video is illegal under U.S. copyright law – there is a specific law designed to keep the YouTubes of the world out of trouble (even if the people actually posting the videos may themselves get in a little trouble).

Legal YouTube Video #1 — The Person Publishing the Video Has the Right Set of Sticks: In every property law course taught in America during the past 100 years, the professor has at some point said, "property is a bundle of sticks." Although the rights underlying U.S. copyright law differ slightly from the rights underlying property ownership, the sticks metaphor holds up: Depending on the circumstances, you might have the right set of sticks, you might not.

Some of the videos you see on YouTube are legal because the person publishing the video is the copyright owner with the right to display and/or distribute the video. When you see guys destroying an old car with a 500-lb ball of rubber bands or free running through the streets of Russia, you're watching a video where the person who shot the video is probably the same person who edited the video for web-distribution, and is probably the same person who uploaded it to YouTube. In this case, it's extremely likely that the person has the right to post the video online.

Legal YouTube Video #2 — The Person Publishing the Video is a Fair User: Under the U.S. Constitution, copyright law protects original works "[t]o promote the Progress of Science and useful Arts," not to make content creators rich. As such, the rights protected by copyright can be limited for a variety of purposes.

The largest limit on an owner's copyright in the United States is something called Fair Use. This doctrine permits an unauthorized person to use someone else's work in a manner that is fair, usually a use that contributes to society in some (modestly) beneficial way without taking too much money out of the original author's pocket through a lost market. In 1976, the Congress formally enacted a statute governing fair use (17 U.S.C. § 107), adopting judge-created language that had been in use since the 1840's:
. . . the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
  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.
Fair use is a tricky one. It lets 2 Live Crew perform Pretty Woman without Roy Orbison's permission, but it doesn't permit a magazine to print (without authorization) a book's bombshells about Nixon before that book has been published, nor does it let a television show display an artistic poster on TV without permission from the poster's creator.

Well, the creator of Drama Chipmunk/Prairie Dog (which I'm going to abbreviate as DCPD) probably doesn't own the rights to post it online. Earlier today, I learned that DCPD was taken from a Japanese TV show, almost certainly without the permission of the copyright holder. (Foreign copyright holders have a U.S. copyright to their works at the moment of creation. There's no registration required.) Taking a current TV show without permission and displaying it on the internet? That's a prima facie case of copyright violation, and the creator of DCPD will be on the hook for copyright violation unless DCPD constitutes a fair use.

This armchair judge is certain that DCPD is a fair use. Under the statutory test quoted above, it will win the battle of the prongs (Under the purpose and character test it will be considered transformative, although the TV show owner will win the second prong, the third and fourth prongs will lean heavily in Drama Chipmunk/Prairie Dog's favor). Still, it's a close call, and it's a call that internet remix artists are not aware of when they remix culture online.

How YouTube Stays in Business with People Posting Videos that Violate U.S. Copyright: Since even something as short, innocent, and – in the language of fair use – transformative as DCPD is a close call, it should be obvious that violating videos are posted to YouTube all the time. Here's how the law of posting copyright-violating videos to YouTube works.

Congress passed a wide-ranging law in 1998 called the Digital Millennium Copyright Act (which everybody calls the "DMCA"). If you talk to people who share online music, you've probably heard them complain about the DMCA — but the section of the DMCA that they're complaining about, Title I, has literally nothing to do with the section we're going to talk about, Title II. Title II is kinda cool.

Without Title II, YouTube would not be in business. Before Title II, YouTube would be contributorily and/or vicariously liable every time a user posted a video that violated copyright and a lawsuit was filed against that user and YouTube. Title II (which is now 17 U.S.C. § 512) creates a "safe harbor" for services like YouTube. Paragraph 512(c) eliminates YouTube's liability — unless a user's content is obviously a violation of copyright (DCPD is not an obvious violation) and as long as YouTube cooperates with copyright owners who demand that YouTube remove content violating their rights, YouTube can wait until those copyright owners complain before they remove content that violates copyright.

Under the current interpretation of 512(c), YouTube is in the clear; however, as more and more copyright owners see their rights violated on YouTube, they'll continue to exert pressure on the U.S. court system to tweak the interpretation of 512(c) into one that is less favorable to YouTube and other Web 2.0 businesses.

Under paragraph 512(c)(1)(a)(ii), YouTube would get in trouble if it let a user post content that was clearly violative of copyright. Previous courts have stated that user-posted content would need to set off bells and whistles to meet the obviously illegal standard: Something titled HERE'S AN ILLEGAL VIDEO THAT I STOLE FROM THE RIGHTFUL COPYRIGHT OWNER would probably meet the standard. However, earlier this month the 9th Circuit Court found that two websites — one entitled illegal.net and the other named stolencelebritypics.com — did not meet the standard whereby the company hosting the sites should have known that "infringing activity [was] apparent." I strongly suspect we'll see what the Supreme Court says about that assumption.

Until then, YouTube's business plan is safe, video remix artists will continue to remix culture and post it online, and a certain Drama Chipmunk/Prairie Dog will continue to captivate us with his/her penetrating gaze.

Monday, June 18, 2007

Neither Here Nor There

This is neither here nor there, but sometimes you take a photo with your cameraphone and you wouldn't change a thing.



This sign is posted near the main gates at Columbia University, warning someone that something is illegal somewhere.

Tuesday, June 12, 2007

Call Me Crazy, But I Don't Think You Need to Define That

Sometimes when lawyers start defining terms, they don't know when to stop.

Witness § 416(i)(2) of the tax code:

Monday, June 11, 2007

My Teacher, Richard Rorty (1931 - 2007)

One of my friends has a strange job. He works for a broadcast television network, crafting obituaries for people who are still alive. Now, as I try to cobble together a few words on Richard Rorty, the person who changed the way I see the world more than anyone else (outside my family), I realize why they write these things ahead of time.

I'm going to write about the second time Richard Rorty changed my life.

The first time, it was 1998 and I was a college senior taking a year-long course from Rorty during his first year at Stanford. The course listing indicated that by taking the class I'd get the chance to reacquaint myself with the Western canon. Instead, what I learned was that I wasn't the only person who cherished religion without living a life of belief, that a school of thought called pragmatism echoed many of the ideas I'd stumbled across in philosophical Taoism & Buddhism, and that Theodore Roosevelt more or less captured the meaning of life when he said "Do what you can, with what you have, where you are." (In class, I once asked Rorty what he felt the meaning of life was. I distinctly recall his answer: "To envisage new modes of being." Let's stick with Roosevelt.)

That was the first time. This is the second time:

The last time I had a long talk with Richard Rorty was October 2001. I was a struggling entrepreneur, back at Stanford half-time to finish my masters degree while the company I helped found was itself foundering (It would miraculously recover). I was taking a graduate course with Rorty – I think it was called Kant, Nietzsche, & Heidegger – and I paid him a visit in his office. I remember the conversation like it was yesterday.

As it was early October 2001, we started the conversation the way all conversations began in early October 2001. We talked about 9/11.

I asked Rorty if he'd written anything about 9/11. He said that he had not, but that he suspected American culture would react to this shock the same way it had reacted to similar shocks before — with xenophobia and a temporary loss of civil liberties. I was still in my post-9/11 complacency. Rorty was not.

Rorty was unflaggingly patriotic but despised chauvinism, recognizing that it's the latter that passes for patriotism today. In his brief 1994 essay The Unpatriotic Academy, Rorty (a lifelong leftie) criticized his fellow academic lefties, expounding a view that others would later condense into the t-shirt/bumper sticker slogan Dissent is Patriotic:

There is no contradiction between such identification and shame at the greed, the intolerance and the indifference to suffering that is widespread in the United States. On the contrary, you can feel shame over your country's behavior only to the extent to which you feel it is your country. If we fail in such identification, we fail in national hope. If we fail in national hope, we shall no longer even try to change our ways.
The obligatory 9/11 discussion out of the way, we moved on to other matters.

Mainly me.
...and my life.
...and me not knowing what to do with it.

It was 2001 and I was completing my second degree in Religious Studies. I knew enough to know that I didn't have the desire or the talent to get my PhD. Having been pulled into 1999's online tulip mania, I had about 2 years of experience with technology startups, but did I want to be the guy with the Religious Studies degree, pretending to know Thing One about how to build The Next Big Thing? Here I was, about to ask Richard Rorty – the most subtle, inspiring mind I'd ever met – what to do with my life.

(I know I said I remembered this conversation like yesterday, but things get a little hazy here. Rather than bore you with "and then I said" followed by "and then he said," I'll just fast-forward to way I felt at the end of the conversation.)

Leaving his office, I knew I had just lived through a Eureka moment. I felt physically changed. I'd felt great before, I've felt great since — but I'd never felt quite like this. As I bid Rorty adieu and descended the interior steps of Building 260, I reflected on these ideas that had hit me like such a freight train.

Long before this conversation, Rorty convinced me that it is pointless to pretend that there is some unique thing called philosophy — I recall him characterizing it as little more than "boring poetry." Although statements like this earned Rorty more than his share of academic enemies, few would dispute the assertion that the best painters, the best writers, the best thinkers, the best musicians do little more than introduce us to new modes of being. Their fields are more similar than they are different. They all show us a glimpse of what is possible.

I'll never forget what I thought as I walked down those steps: The Law is simply the social laboratory in which ideas do battle. To become a lawyer is to become someone who is a tiny part of a gigantic idea project. A lawyer's job is to sculpt ideas as people change and sculpt people as ideas change.

I went home and told my surprised girlfriend – not yet my fiancée – that I had an epiphany and was going to law school. The following summer, I took the LSAT exam. That fall, I applied to a few law schools. I deferred law school for two years until that girlfriend – by then, my wife – finished her own law schooling. In 2005, that girlfriend/fiancée/wife and I moved to New York, and I started law school.

Now, almost six years after talking to Richard Rorty, I believe more firmly than ever that the lawyer's role is to shepherd ideas through society and society through ideas. I'm working at a law firm that guides startups, startups like the one that I worked at when I talked to Richard Rorty in October 2001.

Richard Rorty died on Friday at age 75. A few years ago, he changed my life. Thank you, Rorty. Thank you for changing my life.

Sunday, June 03, 2007

Why I am a Fulham Fan (...and Why You Should Be, Too) — Part III

(Check here for Part I of this post, and click here for Part II.)

Part I of this post argued that the EPL is worth your time and attention. Part II helped guide you away from 19 EPL teams not quite worth your fandom. Now, it's time for me to convince you, probably-a-Yankee blog reader, why you should be a Fulham fan.

In the spirit of full disclosure, I must admit up front that my wife's friend's boyfriend plays for Fulham. Naturally, you understand that this 3-degrees-of-separation relationship makes it more difficult, not easier, for me to be a Fulham fan.

First, football players move around a lot, and there are no guarantees that this guy will be playing for Fulham in the fall. Because of a new global television deal, EPL teams will receive a massive influx of cash next year. As a result, Fulham – like many other teams in the league – is cleaning house in anticipation of purchasing players away from other domestic leagues. He's still a Cottager (Fulham's stadium is called Craven Cottage, and thus the players are sometimes called "Cottagers."), and I expect him to be a Cottager in the fall. But I won't hold my breath.

Second, rooting for a sports team because your wife's friend's boyfriend plays for them sounds an awful lot like a man crush. With professional male sports leagues standing as the last conspicuous bastion of rank homophobia within mass culture, fandom based on a foundation of mancrushery simply would not do.

Now that you've waded through pages and pages of preamble, it's finally time for the final list of...

Reasons You Should be a Fulham Fan
  1. They Have the Most Americans of Any EPL Team. Sorry, international readers, but this article presumes a Yankee audience, so this is point #1. US players Brian McBride and Carlos Bocanegra anchor the Fulham team. Clint Dempsey joined the team in January from the US's MLS league, and provided the goal against Liverpool that kept Fulham in the EPL. Although he's from New Zealand, reserve midfielder Simon Elliott attended college in the US and played in the US's MLS afterward.

    Because of all these US ties, commentators will occasionally refer to Craven Cottage as "Little America." Between regularly playing Americans and featuring team colors that are red, white, and black, Fulham is one hue away from looking like a US team in international play.

  2. They Have the Right Kind of Tycoon Owner. Many EPL clubs are owned by eccentric people of gigantic wealth. Chelsea is owned/ruled by Russian oil oligarch Roman Abramovich. Manchester United is owned by Malcolm Glazer, a US food executive despised by ManU fans. Liverpool was recently acquired by US investors George Gillett Jr. and Tom Hicks in a move that has Reds fans on edge.

    Compare this motley crew with Fulham's owner, Mohamed Al-Fayed. Yes, that's the same Al-Fayed who owns the Harrods department store in London, and whose star-crossed son Dodi was alongside Princess Diana that fateful night in 1997. Some might find Fulham's association with Al-Fayed to be off-putting, but when forced to choose between Al-Fayed and a Russian kleptocrat or a bunch of American conglomerate executives, I'll pick Al-Fayed any day.

  3. The Underdog Factor — They're Not Even the Best Team in Their Neighborhood. As noted in Part II of this post, I'm averse to picking a team at the top of the EPL table. You should pick a good team, but not a great one, and Fulham is on the cusp of good-ness (A 10-game winless streak from February 4 through May 4 of this season argues against them being good right now.) When Fulham wins a game, it's because they really labored at it. Maybe I just like the struggle.

    According to Google Maps, Fulham's stadium is less than 2 miles away from Chelsea's stadium, Stamford Bridge. (For comparison, the closest MLB ballparks are New York's Yankee and Shea Stadiums, which are nearly 10 miles apart. ) This kind of close proximity to big, fancy Chelsea lends middle-of-the-table Fulham with a kind of hardscrabble legitimacy.

  4. Your Friends Will Say, "Fulham Who?" Once you get to the point where you recognize the jerseys of EPL teams when you see them on the backs of people walking around in the US, you realize that 99% of these jerseys are either Manchester United, Chelsea, Liverpool, or Arsenal jerseys.

    ...but when you start rocking a Fulham jersey, your friends will ask "Which team is that?" After explaining that it's Fulham, they'll ask you why you're a Fulham fan.
...and you'll launch into a 3-part narrative explaining your allegiance, a move that will wear down their resolve and simply force them to order the next round of beer.

Go Fulham!

Why I am a Fulham Fan (...and Why You Should Be, Too) — Part II

(Click here for Part I of this post, click here for Part III.)

Now that you've decided the EPL is worth your attention, it's time to choose your team. We start with 20 teams.

Why the Other 19 EPL Teams
Don't Quite Deserve Your Support

  1. You cannot start out your EPL fandom rooting for the Goliaths: Chelsea, Manchester United, Arsenal, or Liverpool. For purposes of illustration, imagine this conversation:
    New Fan: "Hey, I picked my favorite baseball team."
    You: "Oh yeah? What team did you pick?"
    New Fan: "The All-Star Team"
    You: "..."
    These teams have better players and spend drastically more than the rest of the league. The result is that they are too good relative to the other squads and should be promoted to some kind of intergalactic football league. Cheering for them is like cheering for Goliath.

    16 teams remain.

  2. Forget about rooting for newly-promoted Sunderland, Birmingham, or Derby. Choosing a favorite team without a preexisting geographic affinity skirts dangerously close to poseur-dom. To choose newly-promoted teams – teams you couldn't possibly have watched on TV, ever – would ring hollow.

    13 teams remain.

  3. You're not taking a vacation to Newcastle, Greater Manchester, Portsmouth, Liverpool, or Middlesborough and thus cannot support teams based there. Bill Simmons applied this rule, and it makes sense. Having chosen a team, you'll eventually want to experience the real thing and go to a game or two. A family vacation to post-industrial England or the Northern English coast? Not happening.

    Sorry Newcastle United, Middlesborough, Wigan Athletic, Bolton Wanderers, Blackburn Rovers, Everton, Portsmouth, or Manchester City.

    5 teams remain.

  4. Reading is not ready for you. I want to root for Reading. They were promoted this season and had an awesome year, finishing in the top half of the table. They play with admirable reckless abandon. Yet Reading's high crime rate recently earned it the title of Worst Place in Britain to Raise a Family. Also, Reading has not been granted city status by Queen Elizabeth, a snub that leads me to suspect that Reading lacks a certain je ne sais quoi. A certain joie de vivre. ...and a bunch of other pouty French phrases that presently escape me.

    4 teams remain.

  5. You're not going to root for a team with colors that belong on a pastry. You're not rooting for Aston Villa or West Ham. With West Ham narrowly escaping relegation this past season, the EPL has two teams clad in a magenta and sky blue color scheme. Whatever else they are, these squads are a garish visual insult.

    2 teams remain.

  6. Tottenham Hotspur is a solid choice, but Fulham's a better one. It's tempting to root for Tottenham Hotspur, if for no other reason than it sounds like it belongs in Hogwarts with Gryffindor, Slytherin, and the other magical houses.

    Tottenham's logo includes an homage to cock-fighting. They're in London, so you might actually see a game. The team's record is good, but not great, so you're not just picking a favorite. Yet, whatever positives Spurs have encouraging you to root for them, you'll see in Part III that Spurs don't compare with Fulham.

Why I am a Fulham Fan (...and Why You Should Be, Too) — Part I

(Check here for Part II of this post, and click here for Part III.)

This time a year ago, I couldn't have told you that it's a sleepy time of the year for soccer/football fans. I would have only the vaguest idea that the English Premier League – arguably the best domestic football league in the world – had wrapped up its games for the year. I probably couldn't have told you that there won't be many games until the domestic leagues start back up in August (this being a non-World Cup year).

You see, I'd been Tivoing the occasional English Premier League ("EPL") game for the past 4 years, but I didn't really care. Kind of like having a baseball game idly playing on the TV or radio during the summer, I found these games to be pleasant background noise while fussing about the house, doing chores. When I'd hear the fans roar as I was taking out the recycling, I'd come back to the living room to replay the goal.

Something changed this season and I became vastly more interested in English soccer than previously. I'm not sure what prompted this bout of johnny-come-lately fandom. Perhaps this phenomenon is merely the flourishing of my long-budding Anglophilia, a condition nurtured by law school's frequent reference to the English heritage underlying our legal system. Whatever the cause, I'd Tivo all 5 live games available on the straightforwardly named Fox Soccer Channel, hyperwatching them on fast-forward later. I battled a restless night or two by perusing Wikipedia, learning about the various teams and traditions.

Halfway through this past season, I determined that this diffuse interest in the entire English top league would not do, and that I'd need to actively root for one team above all others to enjoy the sport more fully. A friend referred me to a piece written by the popular and silver-penned sportswriter Bill Simmons, who guided his readers on a similar journey at the start of last season (I won't spoil it by revealing his choice). Simmons (whose column on ESPN.com is probably the most widely read sportswriting in the US) prompted other web denizens to offer their odes to the EPL. This is my ode.

Yet, before I advance the argument made clear by this post's title, let me explain for a minute why you, probably-a-Yankee blog reader...

Why You Should be Enthusiastic About the EPL at All
  1. This sport is the most popular sport in the world. Occasionally you'll hear that the Super Bowl is the most watched event globally, or that such-and-such cricket match is where it's at. These are silly distractions. Soccer/football is the mama of all sports. Billions and billions of Elvis fans can't be wrong. Give it a chance.

    Of the domestic leagues, the EPL is globally the most popular and uniformly attracts the best players from the top of the table to the bottom. An Anglophobe? France's Ligue 1, Germany's Bundesliga, Italy's Serie A, and Spain's La Liga are also quite good, but I can't help you much with any of these.

  2. The winner of the regular season wins the league, unlike US sport leagues, where the winner of a season-end tournament wins the league. No tournament = no lucky team to win the league at the end of the year after a forgettable season. You're rewarded for consistent play all season long. Somehow that seems more fair.

    The downside of lacking a year-end tournament? Sometimes a lopsided league winner will be determined a few weekends or a month before the end of the season. Combating the ennui of a long-determined winner is...

  3. The Wonder of Relegation. Relegation is the awesome Shiva of sports, destroyer and transformer.

    England (like many a soccer-addled country) has multiple professional soccer leagues. Relegation means that the bottom 3 EPL teams are sent to the 2nd flight league, the Championship, and the top Championship teams rise to the EPL. This happens serially, with each league sending their best teams up and their worst teams down.

    The result is something like Darwinism for sports. Good teams are rewarded, bad teams are punished. You don't have the Milwaukee Brewers — a profitable team that will never, ever do anything meaningful in the top US baseball league. Since team owners are not monopolistically locked into their leagues, and since the lower league teams aren't farm teams, owners of EPL teams simply cannot field a mediocre product year-in-and-year-out and count on reaping profits from an over-loyal fanbase.

    Winning the league – as Manchester United did this year – is great, but a string of victories resulting in a league cup lacks the life-or-death urgency of those clubs locked in a struggle to stay afloat in the league. This year, the final relegation slot came down to a duel between two bottom teams on the last weekend, exacting such an emotional toll that both the winning and the losing managers quit after the game. That's crazy, tense, exciting stuff. Compare that to the games at the bottom in US leagues once teams have been mathematically eliminated from the playoffs. Those games are so boring and lifeless that admission should be free.
It should be easy to get excited about the most popular sports league on earth. More difficult is deciding which of the 20 teams deserves your allegiance, your hopes and your heartache. For guidance on this daunting task, and to read about why you should be a Fulham Football Club fan, check out Part II of this post.