Aug 12, 2010

Legal opinion of a fictional scenario

Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media

[Review of the facts and arguments omitted]

This case is about copyright infringement on a video sharing website which has a world-wide influence. Canada’s Copyright Act has clearly affirmed that “copyright” covers “the sole right […] to communicate the work to the public by telecommunication […] and to authorize any such acts.” The term “telecommunication” is defined as “any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.” It is undeniably the fact that, during 2005 to 2007, before YouTube and Google implemented a filtering system and other content protection measures, YouTube users commonly uploaded unauthorized clips of TV shows and movies to the website. The uploading of unauthorized materials by YouTube users is a communication falls within the declaration of Copyright Act, and as the copyright owner of those clips, BEC’s right and interest has been infringed. The question being discussed in this legal opinion is: Should Google and its YouTube property be responsible and to what extent they are responsible for the act of copyright infringement in this case? Based on the arguments uttered by BEC and Google, there are two sub-questions to be interpreted:

1. Does Google or YouTube has the validity of being exempted from the Copyright Act?
2. Is YouTube “looking the other way” when clips from BEC’s movie and TV productions were once plentiful on YouTube website?

Based on the facts of this case and the existing legal grounds, I personally hold the opinion that Google and its YouTube property is responsible for the act of copyright infringement on YouTube website in this case. As a major video-sharing website, YouTube functions more than an innocent third-party intermediary and thus cannot be protected from being held responsible for copyright infringement committed by its users. As to the second sub-question, it is impractical to have a clear-cut evaluation over the subjective inclinations of YouTube when infringing materials burst. However, it is not the aim of this case to determine whether or not YouTube was “looking the other way” when infringement happened, and the answer of this question does not have a direct affect on the judgment of this case.

There is no doubt that the expansion of Internet in contemporary society has created serious obstacles to the protection of copyright, since current communication technology (i.e. Internet based file sharing such as P2P technology) makes it possible to exchange and transfer copyright materials worldwide among large number of people even in a few seconds. Facing the situation, current legal system is struggling to follow the pace of technology. The Theberge case [2002] and CCH v. Law Society case [2004] clearly manifest that the Supreme Court of Canada has described the Copyright Act as providing “a balance between promoting the public interest in the encouragement and dissemination of works of art and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the copyright owner from appropriating whatever benefits may be generated)”. As Sharlow J.A. writes for the SOCAN v. CAIP case [2004]:

The capacity of the Internet to disseminate works of the art and intellect is one of the great innovations of the information age. Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of arts and intellect in the first place.

Section 2.4(1)(b) of the Copyright Act provides that participants in a telecommunication who only provide “the means of telecommunication necessary” are deemed not to be communicators. The “means” include all software connection equipment, connectivity services, hosting and other facilities and service without which communication could not occur. Such distinction between content supplier or obtainer of the Internet and the infrastructure of the Internet reveals the Parliament’s encouragement of the use of new communication technology in balance of the protection over copyright owners. In SOCAN v. CAIP case, Internet service providers such as Bell Canada are exempted from the copyright liability because they limit themselves to a conduit and part of the content neutral infrastructure of the Internet, thus they fall within the protection of Section 2.4(1)(b) of the Copyright Act.

However, facts are different in this case. Google, more specifically, its YouTube website, is a video-sharing website based on Adobe Flash Video technology and on which users can upload, share, and view videos worldwide. Though it provides a “platform” to share all kinds of videos, the role it plays in the telecommunication activity is different from that of the ISPs such as Bell Canada. From my perspective, YouTube functions like an entity of new media on the Internet more than merely a conduit or infrastructure. Here a simple example, suppose a school boy has used Bell Canada’s service to connect to the YouTube host server and successfully watched unauthorized three seasons of The Big Bang Theory on YouTube website, it is obviously improper to equalize the role Bell Canada and YouTube play here. Bell Canada indeed provides the physical means of communication, while YouTube is providing the videos directly and obtains profit from such activity as a commercial website.

Furthermore, as an influential medium based on Internet communication, YouTube has a responsibility to support the legal and moral system of our society and to prevent content like violence, racism, terrorism, genocide and the like as well as piracy content exist on the website. In this case, YouTube, together with the video uploader, can be viewed as a “joint content provider”. In other words, both YouTube and its users who upload the copyright infringing videos are participants in the infringement act, their responsibility in this process cannot be separated, and YouTube should be accused because it provides the platform for the infringement act and appropriates large benefits from the pirate clips.
Some would argue that YouTube can also be exempted from infringement if it proves the service it provides falls within the fair dealing defence. Section 29 of the Copyright Act provides that “Fair dealing for the purpose of research or private study does not infringe copyright.” However, facts in this case do not support the defence of fair dealing exception either. The clips of TV shows and movies are cultural product and mainly serve for the purpose of entertainment, also, BEC produce and market them in pursuit of commercial profitability. The unauthorized clips existed on YouTube website also brought YouTube huge benefits from advertising and so forth. Lastly, the dissemination of videos on YouTube website is a communication to the public. Accordingly, YouTube cannot prove its dealings with these clips are fair under s.29 of the Copyright Act.

Another argument between BEC and Google is whether or not YouTube was “looking the other way” when infringing materials were once plentiful on the website. As I stated, it is difficult to have a clear-cut evaluation over the subjective inclinations of YouTube in this case. The willful blindness of YouTube seems a reasonable deduction since every commercial organization inclines to maximize its profit, but the argument from Google is also powerful and convincing. As a matter of fact, base on present state of technology and the huge number of videos uploaded to YouTube every day, it is impractical to filter and supervise all the video content and eliminate the existence of copyright infringing materials. However, as a principle of law, a reasonable explanation of wrong-doing does not equal to an exception from the punishment. In this case, YouTube participates in the violation of Copyright Act and BEC has suffered from the economic loss, it is not determinate for the result of the case to figure out if YouTube has the intention on the infringement act or not.

In addition, the judgment of this case is not only about copyright infringement of one website, it also has some implications on the issue of proper behavior and business ethics of today’s new media. Personally speaking, our present legal system has already compromised and given enough, if not sufficient, space to the growth and uses of new technology, such as the Internet. However, there has to be a legal and moral bottom line lies in the uses. If in this case YouTube is exempted from copyright liability in its video-sharing services, it is reasonably predictable that numerous websites which provide similar services will take advantage of this judgment and expand their copyright infringing services. This goes against the “balance” Copyright Act strikes to keep and also largely disturbs existing market order. The social influence and future implications have to be considered.

Conclusively, given the facts, the legal grounds and the possible social influences, I hold the opinion that Google and its YouTube property is a participant in the copyright infringement alleged by BEC. The dealings of YouTube in this case neither falls within the protection of Section 2.4(1)(b) nor falls within Section 29 of the Copyright Act of Canada and the intention of YouTube regarding whether or not it allows or encourages the video publishing is unnecessary to identify. BEC is going to win the case.

Aug 5, 2010

Reputation, Defamation and New Media

Jing Ke
August, 2010
Course Title: Law and the Challenges of New Media

The question discussed in this essay is the challenges to today’s legal system derived from the uses of new media with regard to the issue of “reputation”. New media, in contrast to the traditional media, in this essay refers to the forms of electronic communication based on the use of computer technology, most typically the Internet. Doubtlessly, the rise of new media and digital communication technologies in the past decades has brought a wide range of challenges to modern society, since the online information publication could be fast, anonymous, global and even uncontrollable. As a matter of fact, the surge of new media, such as the Internet, has become a huge potential threat to a person’s reputation in contemporary society.

The definition of Reputation (Merriam-Webster Dictionary) is the overall quality or character as seen or judged by people in general; or a place in public esteems or regard (good name). On the other hand, Defamation is communication about a person that tends to hurt the person's reputation. In today’s new media era, a person’s online reputation is highly connected with and has large influence on the person’s reputation in real world. As Cory J. asserted in Hill v. Scientology case, the reputation of an individual (an organization as well) should to be cherished above all in a democratic society. Firstly, a good reputation is closely related to the innate worthiness and dignity of the individual. Secondly, reputation is the fundamental foundation on which people are able to interact with each other in social environment. Thirdly, it serves the important purpose of fostering a person’s self-image and sense of self-worth. Finally, it is intimately related to a person’s right of privacy. For these reasons, a person’s reputation must be protected by law, i.e. the common law of defamation.

On the other hand, when we talk about reputation and the challenges brought by new media, we should not ignore what stands on the other side of the issue: the freedom of expression. Among all the cases we read, the Hill v. Church of Scientology of Toronto Case [1995], the Newman et al. v. Halstend et al. Case [2006] and the Crookes v. Wikimedia Foundation Inc. Case [2008] clearly manifest how the whole system of common law aim to strike an appropriate balance between the twin values of reputation and freedom of expression, and how difficult it is to reach a convincing judgment over those issues.

The right of free speech, in other words, the freedom to express ideas and criticize the operation of institution and the conduct of government, is indubitably the cornerstone of a democratic society. However, no freedom is absolute and the freedom a person acquires on expression is also a “freedom governed by law”. The importance of free speech should never be over-emphasized, especially in cyberspace activities. As it is revealed in the cases, with the widely use of contemporary new media technologies, acts like defamation, libel and false allegation can quickly and completely destroy a person’s reputation, both online and in real world, thus such act should be regarded as a serious offence. Besides that, on a broader scope, the issue of reputation is concerned in any lawsuit since the reputation of everyone involved in the case is at stake.

The Crookes v. Wikimedia case is a good example of how the expansion of Internet in society brings unexpected questions to our legal system regarding reputation and defamation, i.e. is it an act of defamation when a website article includes a hyperlink to some defamatory websites. The judgment of such cases indicates a high consideration of the intentions of the article publisher, and whether there is a “publication” of the defamatory words. Based on my understanding, the act of publication can be examined in a rather objective manner while the intention of the publisher is a more subjective issue. In many cases, some extreme, biased or inappropriate expressions in cyberspace could be acceptable and allowed in order to protect freedom of expression and realize public interest, however, such expression may only be one step away to become libel, malice and other illegal act. – In other words, the difficulty and vagueness in keeping the balance between reputation and freedom of expression in today’s legal system is the main challenge brought by new media. As a matter of fact, there is a large “grey area” lies in the protection of these two fundamental human rights, and one can hardly draw a clear line in between.

The challenge of a person’s reputation in today’s web2.0 or even web3.0 area raises questions like the management and regulation of blogs, online chat rooms, bulletin boards and other public space for free expression, which is a challenge faced by the legal system globally. Take China’s “online mob” phenomenon for example, which refers to when some Internet users publish an individual or organization’s scandals (i.e. a husband having an affair with someone else, or some companies doing backstage deals in the market) on the Internet, hundreds of thousands of anonymous Internet users start to join in the publication and “attack” the person involved. They simply use their keyboards and mouse as weapons and in most of the time, the online mob can successfully find out very detailed personal information of the ones involved in the scandals (i.e. name, job, address, phone number, date of birth, family and even pictures). Plus, they also publish numerous threatening and humiliating words to the individual. As a result, the person being attacked turned out to be hurt both mentally and physically, some of them move to another city or even commit suicide under huge pressure.

Obviously, the online mob phenomenon in China has emerged as a growingly strong power in society and has large influence on people’s real life. As a kind of dangerous crowd behavior, it indeed leads to an invisible but alarming violence. Though government starts to pay more attention to online expression regulation, it seems impossible to curb the emergence of such activity. From my perspective, it is unquestionable that Internet should be free and the online freedom of expression should be protected. Such is especially important for a rapidly transforming country like China, and it will definitely help to build a more open, fair and democratic society. However, all these online public space: blogs, chat rooms, bulletin boards and so forth are just a platform for information communication based on new technologies, not a court. Though netizens have the right to express their ideas and opinions, they should not go across the line. Furthermore, numerous historical and current events have proved that the moral standard of the public (the Internet users in this case) is not always trustworthy, and crowd behavior in most of the time turned out to be irrational activities with miserable endings.

From my perspective, the protection of reputation in new media era is both a legal and moral issue. In many cases, defamation exists, damages are made, but no one could be identified to take responsibility since the online identity is fake and anonymous. Policies and laws should be further developed to have a better protection over every social member’s privacy and other interests. However, when present state of technology and legal system cannot promise a whole protection, we have to go to morality and rise the moral standard of Internet users by means of education, mass media, community and so forth. The guideline is the minority who are hurting others should be prevented but the majority’s freedom of expression should not be disturbed.

To sum up, compared with traditional media, new media such as the Internet provides a more rapid, interactive and unrestricted measure in communicating all kinds of information nation-wide and internationally. It is a technology we should take advantage of, but also necessitates a rigorous and systematic regulation over its uses. Law and legislation always develop with the pace of the times and they exist as a measure to balance all kinds of power and interest in society, including personal, public and national. The widely use of new media today questions how to fulfill the vacuum in legal system concerning the issue of reputation and defamation, and the ever-changing legislative and juridical framework of contemporary society is again in a transition. It reveals the development of our society and the development of human civilization; it also indicates the concerns and protection of human rights. The final goal of such transition is to enable all users of the new media to enjoy their own rights and freedom in the cyberspace while guarantee their uses do not infringe others’ rights and freedom, which is also the spirit of a civil society.