Sunday, October 31, 2010

Upcoming Events and Blogs (Shameless Plugs Category – Low-Cost, High Quality MCLE!)

The IP Law Center at Golden Gate presents the Ninth Annual Recent Developments in IP Law and Policy Conference at Golden Gate University all day (9-5 p.m.) Friday, November 5th, at the GGU campus at 536 Mission Street in San Francisco. The Conference features panels on recent developments in trademark and patent law, an hour of ethics for IP practitioners, and a cutting edge panel on online gaming, featuring panelists from Zynga and Electronic Arts, and moderated by veteran copyright lawyer Neil Smith. The program offers 6 hours of MCLE credit for $75 for attorneys, $35 for GGU alums, and $15 for current students (which just about covers the box lunch cost!)
Tickets can be purchased online at, or on the day of the event. For further information, email Justin Reid at

Ninth Circuit Chief Judge Alex Kozinski speaks on April 11th, 2011. The IP Law Center at Golden Gate University School of Law is pleased to present to the Bay Area IP law community a rare opportunity to hear remarks by Ninth Circuit Chief Judge Alex Kozinski regarding IP law and important trends in federal IP law jurisprudence. Judge Kozinski will present these remarks as the third speaker in the IPLC’s Distinguished IP Law Speaker series, in a program free to the public, held at the GGU campus from 6:30-7:30 on April 11th. This is a not-to-be-missed opportunity to hear from one of the leading jurists in the nation, whose probing and sometimes caustic commentary on IP issues routinely makes headlines and is studied by academics and practitioners alike.

Last but not least, two new blog posts follow this one, and I’ve got a few more in the works. Its’ been a bit of a blogging dry spell since my September posts, but with the planning of the IP Conference now completed, I can now address a backlog of blog topics that have been waiting patiently on my desk – including commentary about the violence in video games case (Schwarzenegger v. Entertainment Merchants Assoc.), and the future of copyright, including my review of the fascinating analysis and proposals included in a forthcoming article on this subject by a consortium of contributors assembled by Berkeley Prof. Pamela Samuelson, and a discussion of the SFIPLA panel on the subject, in which Mark Radcliffe and I offered divergent forecasts. Stay tuned!

Digital Sweatshops: A New Global Labor Law Challenge

In his Digital Domain column in the October 31, 2010 Business Section of the New York Times, Silicon Valley author and business professor Randall Stross writes about the growing business of widely distributed repetitive task work in the online universe. Pioneered in 2005 by’s Mechanical Turk service, the business involves software apps which, per Stross, “carve a given task into microscopically small pieces, like transcribing a hand-written four-digit number in a tiny rectangle on a form”, a task which Stross points out presents a problem for text-recognition software, and thus is more efficient if performed by hand.

Such work is referred to as “microtasking”, and businesses pay a few cents per completed task, such as 2 cents for finding the contract information for 7500 hotels, or 3 cents for each answer regarding an inventory of about 9,400 toys. CloudCrowd in San Francisco offers work for “garble hunters” who find translation errors and are paid 20-25 cents per word.

Law professor Miriam A. Cherry has written of this practice, and has a new article forthcoming in the Georgia Law Review, entitled A Taxonomy of Virtual Work, in which she raises concerns about this kind of “virtual work”, and how it will raise new issues, and renew old issues, for labor unions and employers. In an earlier article on this subject she notes that Chinese “gold farmers” who are hired to play online games for long hours to earn “gold”, forms of virtual currency that allow gamers to move up levels, are paid low wages for the effort, and for whom the “game” is anything but fun.

This is once again an example of how developments in the online universe continue to present, in new contexts, legal issues that require the IP legal community to analyze their contexts, to see if existing law can address the issues, or if sui generis approaches are needed. Stay tuned…we are just touching the surface of this issue.

Viacom v. YouTube: Further Thoughts on DMCA Section (512(c)(3)(A)(ii), the Representative List Dilemma, and a Solution

Whew! What a long title – admittedly clunky, but accurate. At this weekend’s State Bar of California IP Law Section’s 35th Annual Intellectual Property Institute, I attended an excellent panel with a similarly long title: UGC on a Global Stage: International Update on Secondary Liability for Copyright Infringement. Moderated by James Nguyen of the Beverly Hills office of Wildman Harrold Allen & Dixon, the panel’s focus was on how secondary liability for UGC (user generated content) was being addressed in countries throughout the world. The discussion began with an insightful presentation by Melinda Mehringer, Senior Vice-President, Content Protection Litigation, Fox Entertainment Group, which summarized the UGC issues in the U.S., exemplified principally by the decision in the Viacom v. Google, YouTube et al. litigation.

I have previously discussed this case (see my July 1, 2010 blog posts) and voiced my concern that the DMCA notice and takedown process was a poor fit for UGC comprised of multiple uploads of the same or similar content. The inability of ISPs to locate posts via the “Representative List” process offered by DMCA Section (512(c)(3)(A)(ii) left content providers in the difficult situation of having to identify, by individual URL, each infringing post – a burdensome task when a work is posted and reposted multiple times. In subsequent commentary about the case that I offered on a panel at the Fall ABA conference in San Francisco, I noted that the use of hash marks as a form of pre-upload filtering was not much of a solution, since the hash marking systems only worked for identical content – which meant that any YouTube posting that added or mashed up content would escape detection.

I was reassured, and a bit horrified, to find Ms. Mehringer reaffirming the view that the notice and takedown system wasn’t working in the UGC context. She noted that in the first half of 2010, Fox Entertainment had sent out seven million (7,000,000) takedown notices! This is a staggering number of notices, and makes it abundantly clear that we need a better system to allow content owners to protect their work. Ms. Mehringer noted, in a conversation we had following her presentation, that the entire suite of different types of pre-upload filtering systems now in use by YouTube and other ISPs are allowing content owners to identify up to 85% of infringing content, but the burden of sending out notices, particularly in the kinds of numbers she cited, remains untenable.

All of this puts me to mind of Prof. Lawrence Lessig’s discussion, in the first version of his book, Code, and Other Laws of Cyberspace, that to effect change in the online universe, four different modalities must be involved: Code (or architecture), Law, The Market, and Social Normative change. While filtering systems and threats of legal enforcement may help address UGC infringement issues, the absence of any economic consequences, and more importantly, the failure to convince users that infringement is a social harm, likely means that this battle will continue, to the detriment of the creative community.

Coming up with a solution to this dilemma is a challenge for all of us in the IP community – so consider the gauntlet thrown readers – how do we solve this?