IP Democracy: Intellectual Property Up for Grabs on the Internet

A string of developments has coalesced in my mind today to underscore the unstable nature of intellectual property law on the Internet, where old rules don’t seem to apply but nobody really knows what the new rules are. The first item: YouTube has complied with a take-down request by a group of Japanese media companies, which claimed that 29,549 media clips were posted on the popular site without the copyright holders’ permission.

That seems like a straightforward development governed by the Digital Millennim Copyright Act, except comentators view this development as a harbinger of things to come. Good Morning Silicon Valley’s John Paczkowski quotes Forrester analyst-on-the-spot Josh Bernoff, who earlier this year said “So, mark my words, YouTube will get sued. And it will lose.”

Maybe…but how can YouTube get sued and lose if it’s obeying the law by taking down requested content? Easy. Someone is going to challenge the DMCA because it doesn’t seem to fit the real-world anymore. So it’s the law that’s the problem and not YouTube’s compliance with the law.

Mike at TechDirt rips into CNET’s Charles Cooper for an essay Cooper wrote which suggests Google is engaging in “immoral” behavior for making money off of other people’s copyrighted content. Cooper thinks we should all be talking about the legality of Google’s links while Mike at TechDirt thinks Cooper is, at the minimum, just jealous of Google’s success.

On the permission side, the second you put something up on the web without any protections or logins, you are giving permission to have that content visited and for people to point to it. There’s no copyright violation at all in including a blurb.

Finally, Eric Goldman at the Technology and Marketing Law Blog hits on something that doesn’t receive a lot of press, but should: the law is very unsettled regarding the trademark status of the key words advertisers use for Google searches.

2006 has been a bit of a jurisprudential disaster on the question of whether buying/selling keywords constitutes a trademark use in commerce. Basically, courts can’t agree, so plaintiffs and defendants are trading wins—sequentially by date, the answer to whether keyword advertising is a use in commerce has been yes (Edina), no (Merck), yes (800-JR Cigar), no (Rescuecom) and yes (Buying for the Home). At least we have a predictable pattern emerging (consistent with the pattern, the next case should be a “no”)…but the alternating pattern is hardly confidence inspiring.

Although all three of these issues cover different aspects of intellectual property law, they all highlight how terrifically difficult it is anymore to make concrete statements about copyright or trademark infringement on the Internet. Even something as solidly legal as Google’s caching of content and delivery of search-produced links isn’t as inviolable as you might think, at least not globally anyway (just ask the Belgians).

Posted by Cynthia Brumfield on October 21, 2006 9:00 AM to IP Democracy