Universal and MySpace Square Off Over DMCA

moore.dustin writes "Universal and MySpace look to be on a collision course that could shape the future of media companies and the internet. The article discusses the DMCA's impact on their case, and talks ways in which the law lags behind the realities of technology." From the article: "Yet, as lawyers prepare for battle, they do so on uncertain legal ground. The legislation at the heart of the debate, the Digital Millennium Copyright Act, was written years before social networking sites such as MySpace even existed. That fact has injected considerable uncertainty into the matter, according to copyright experts, and helps explain why lawyers from both sides are proclaiming that the DMCA, as it is known, is on their side."

Comments

Re:The Universally Flawed Argument

[quanticle]

Seriously, wasn't this settled during the Betamax case? If I recall correctly, the movie industry tried the same argument there — i.e. video cassette recorders encourage copying of intellectual property. The Supreme Court there ruled that videocassette recorders were legal because of the many legal uses they had, and the fact that they could be used for illegal purposes did not diminish this.

How is that situation different from this one?

Re:I can't wait

[MMC Monster]

How are content creators supposed to support themselves? I mean writers, actors, singers.

I know the current system is useless, but how do we replace it and still have content be worth something so that creators can make a living?

What's changed.

[Kadin2048]

How is that situation different from this one?

I think the major difference is that the movie/music/"content" industry has, since the Betamax case, spent probably close to a billion dollars lobbying Congress and getting laws passed which together change the dynamic of the playing field from what it was like in the 1980s.

They learned from where Jack Valenti failed (from their perspective) and are now a lot smarter when it comes to using the government as a cudgel against their own customers.

In short, the industry is smarter now, and they have had 20-odd years to make the environment more politically receptive to their point of view, on all levels.

Re:What's changed.

[Total_Wimp]

They learned from where Jack Valenti failed (from their perspective) and are now a lot smarter when it comes to using the government as a cudgel against their own customers.

I just walked in from the car where I was listening to NPR. They had a guy from Youtube and another guy from NBC. During this call-in program (The Diane Ream Show) they were actually quite civil and seemed like they wanted to work together. The NBC guy said they don't want "vast quantities" of their music on Youtube without compensatino, but said they eagerly look forward to haveing some kind of revenue sharing agreement. He pointed to the iTunes deal as a great success and said $1.99 per movie worked great for them. Additionally he pointed out that some of NBC's shows are put online directly on the NBC site. They Youtube guy said they're working with NBC right now and hope they can put together a deal

The bottom line is that it sounded a whole hell of a lot like NBC wasn't purposely trying to be evil. They're not just trying to get politicians to do their biddnig to screw everyone over. They're working with distribution outlets to get their material out there. They just want to get paid for their very expensive programming.

Now I know there's still a lot of badness out there. Copy protection sucks, as well as the fact that it's not like their whole library is available for you to pick and choose from. They still want the broadcast flag so they can force us to pay and then make content disapear.

But at least it looks like they're trying to resolve some of the basics, like giving consumers the choice of ad supported, or pay-to-watch content ("Lost" is available one way on the ABC site and the other way on iTunes, not to mention DVD) and generaly making more material available to watch, without making you pay a bunch of times for the same thing.

We should still fight the bad stuff, but, damn, they're at least starting to come to terms with the fact that consumers need some level of control over the process. They're a little smarter, also, in the sense that they realize they have to move into the internet era. Unlike the record industry, they know that they cant force consumers to keep using the same old business model. For that, at least, I do give them credit.

TW

Re:The Universally Flawed Argument

[Duds]

The obvious different is that Myspace are specifically storing the copyrighted material on their site.

If Sony were allowing people to store all their betamax tapes of copied films in a Sony warehouse the case may have had a different outcome.

A better similie to that case would be if myspace was displaying videos playing off my server, at which point they would be protected.

The other difference is of course the laws were different back then.

uninventing the printing press

[openright]

The new printing press, the internet, came and provided a means of great information freedom.
But for the companies that used a business model based on controlling media, the freedom of information was a threat to profits.
So these companies paid/lobbied/bribed the government to get some new laws passed. One that extended the copyright to 95-120 years. And another specifically written to control publishing digital information and override past "fair use" clauses that allowed things like VCR's and Tivo's.
But even with all of this, the public still expects to have more freedom and innovation that internet had promised.
Companies and web sites come up for sometime short times that offer a glimpse of what could be. Then the controlling media companies try to shut them down, pointing to the laws that were legally paid for.
The media companies may be successful in suppressing information for a time, perhaps in some countries. But a country that manage to fight this control, and manage to allow a level of information freedom that really promotes innovation; This country will have a great advantage.

Why Universal Bothers

[Kadin2048]

Considering that CBS has already said that clips on YouTube are helping their business you wonder why Universal bothers.

CBS and Universal operate in fundamentally different modes within the entertainment/'content' business. CBS basically responds to consumer and viewer demand -- delivering news and less-than-cutting-edge television entertainment -- while Universal has made a killing by staying on the bleeding edge. Universal doesn't follow demand, they manufacture it.

Thus while CBS is perfectly fine having YouTube create a market for their stuff, Universal is far more controlling. Their success depends on complete control of distribution and publicity; they want to micromanage everything, playing with artifically-induced scarcity so as to maximize the effect and appeal of their brands and products. Anything that relinquishes any amount of control over media distribution to the public is a Bad Thing to them.

If you think of 'the curve' of public interest, CBS is a fairly conservative organization and basically stays just behind it, while Universal wants to be out front. This requires a far more aggressive and controlling attitude when it comes to their content.

I think eventually you're going to see a schism in the entertainment business, between companies that are responsive to demand, and basically look at what's popular and try to respond to it, without a whole lot of risk (and who are basically receptive to any new technology that reduces costs), and companies that try to project themselves ahead of demand and actually manufacture popularity, a fundamentally riskier (but potentially more profitable) endeavor that lends itself to maximizing control over the entire process, from creation to viewing. For many years, these two business models have coexisted -- companies owning movie studios and record labels also owning television networks -- but I'm not sure it's as natural an alliance as it appears.

Re:I can't wait

[teh_chrizzle]

well, seeing as how the concept is nearly 500 years old i would imagine maybe another 500 years will finally see it's demise.

Re:The Universally Flawed Argument

[Gription]

The difference is the DCMA basically tries to specify that anything that that can be used to subvert copyright protection is illegal. Remember the bit where the copy protection on certain CDs could be circumvented by using a magic marker to blank it out? It was pointed out that the verbiage of the DCMA would then make magic markers illegal.

This is all about law. It isn't supposed to make sense and it rarely relates to the real world.

Re:The DMCA does cover this

[tuxlove]

While I think the DMCA is a giant steamer, it does appear that it protects myspace if they qualify as a service provider. The wording of the DMCA defines a "service provider" as "...a provider of online services...". That is rather ironic, isn't it? Though the DMCA says they can't have profited from the copyrighted material in order to be protected; while they are obviously not selling music directly, music is one of the big things that draws in people and gives myspace its value. So Universal may have some argument there.

Different models, different attitudes.

[Kadin2048]

You might be interested in reading another comment I posted in this same discussion. Basically, I think there is a fundamental and growing difference in the entertainment industry between companies (the news companies, most major TV networks) who are responsive to consumer demand and try to follow/track demand as closely as possible and tailor their offerings to it, and companies like Universal that want to manufacture demand itself. Currently there are many organizations (like GE's NBC Universal) that do both, but I think that just masks the conflict, it doesn't mean it's not there.

I think this is why you get TV networks that are much less restrictive and controlling about their content than the movie studios are; the studios have a business model that relies on control and engineered 'supply shortages' to create demand, while the networks exist to push as much content out (along with ads) as they possibly can, at the lowest possible cost.

At the extremes, it's a 'manufacturing' versus 'service' industry conflict. Broadcasting, as exemplified by the 24-hour news channels, are a service. The value is in the continued stream of information, not in discrete copies of a particular recording (except for special cirumstances, e.g. recording of a particular event, or if the anchor does something embarrassing). Music and movie companies, on the other hand, are "IP factories." They design, produce, market, and profit from the sale of 'media widgets,' discrete quantities of content that have a measurable value, separate from their value as part of a service or stream of information.