(Photo of Fred von Lohmann at ETech last month by Scott Beale — I was exhausted today so didn’t bring my camera!)
The most interesting session of Day Four of the Web 2.0 Expo today, for me, was the presentation by Electronic Frontier Foundation attorney Fred von Lohmann about copyright risks. Fred (whom I devoted a chapter to in Darknet and who blogs at Deep Links) laid out how Web 2.0 companies built on user-created content receive some protections under the 1998 Digital Millennium Copyright Act (PDF).
Most attorneys refer to these four sections of the DMCA as the "safe harbor" provisions, but Fred likened them more to islands than harbors.
DMCA Section 512(a) is "Conduit Island": if you’re an Internet Service Provider providing connectivity, you won’t be held responsible if your users infringe content. This applies to pipe providers like AOL, Verizon, Comcast and AT&T.
Section 512(b) is "Caching Island," which von Lohmann said "was designed for AOL’s caching activities around 1997." This "walled network" provision is largely outdated.
Section 512(c) is "Hosting Island" and may be the most part of the DMCA as it applies to Web 2.0 start-ups and web-hosting companies.
Section 512(d) is "Search Engine Island," which protects indexing and searching of possibly infringing materials and covers all search engines, including MSN, Yahoo and Google.
Von Lohmann talked chiefly about the third provision, companies that host user-generated content. It’s a huge category and growing bigger (as yesterday’s stats show, growing from 2 percent to 12 percent of the online content universe in the past 2 years), covering blog hosting sites like Blogger, music lockers like mp3tunes, music playlist sharing sites like Avvenu and imeem, photo sharing sites like Flickr, video sharing sites like YouTube and Ourmedia, file hosting services like Pando, and combination sites like MOG.
He extended his metaphor this way: "The big question is: how close to the waterline are you?: The search engines are well protected, but it’s unclear how safe new businesses in the hosting arena are, given that there is little or no case law.
To get on and stay on "the island," von Lohmann said, it’s important to follow three steps: Register a copyright agent with the U.S. Copyright Office; and provide provisions for notice and takedown and an infringer termination policy in your site’s Terms of Service.
Creative Commons
Von Lohmann then moved into an interesting discussion of Creative Commons licenses and pointed to the millions of photos on Flickr available under various CC licenses.
At one point I held aloft my Nokia N93 camera phone and asked Fred, "I just took a photo of you. I’m uploading it to my Flickr account and giving it a CC Attribution license. Are others free to remix it and use it commercially, or do they need your permission as well?"
The answer, he said, is complicated. It all depends. You skirt the copyright issue because of the Creative Commons license. But other laws come into play, chiefly centering on privacy and rights of publicity.
A person can’t take a photo of Michael Jordan at a public event and then embed that image into a shoe line for commercial purposes without obtaining Jordan’s permission. You can’t use a high-powered telephoto lens to peer into someone’s bedroom and then make the images available for people to use however they want. Ultimately, test cases will determine the contours of the law in this area.
Another interesting issue is: What does noncommercial mean? "Creative Commons has had enormous internal debates about that. There’s an enormous grey area — the licenses don’t define what ‘noncommercial’ means." Your best bet is to go into the CC wiki and examine the discussion about commercial and noncommercial uses.
Cross-posted to Darknet.
More Web 2.0 Expo coverage via Technorati.
And at Wired: Tim O’Reilly: Web 2.0 Is About Controlling Data.
JD Lasica, founder of Inside Social Media, is also a fiction author and the co-founder of the cruise discovery engine Cruiseable. See his About page, contact JD or follow him on Twitter.
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