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Fair Use Faces Off Against Copyright Issues at DRM Confab

25 Apr, 2007 By: Jessica Wolf

There needs to be more urgency on the digital rights management issue and a healthy sense of realism as to what exactly DRM tools can and should accomplish, a panel of senior counsel from The Walt Disney Company, NBC Universal, Viacom, Microsoft and Google said Tuesday during the final day of the LexisNexis/Daily Variety DRM confab.

It's not too late, but there does need to be a stronger sense of urgency and a better coming-together of the industry players, said Alan Braverman, senior EVP and general counsel for Disney.

And everyone involved agreed that there is no chance of 100% containing what has become known as the “darknet,” the online areas where digital piracy and illegal filesharing runs rampant, panelists said.

“I do think we could get to 80-90% success,” said Brad Smith, SVP and general counsel for Microsoft.

But it's important to remember that that potential 80-90% success won't come from a single, static DRM solution, said Richard Cotton, EVP and general counsel for NBC Universal. All DRM will have to be dynamic and change over time, to keep ahead of hackers and would-be darknet pirates, he said.

It's also important that content owners, CE companies and technologies come together and create realistic DRM solutions without government intervention, panelists said.

DRM issues are highly complex from an engineering standpoint, and most speakers and presenters at the two-day conference fear placing those decisions in the hands of Congress.

There's been a lot of talk about the need for and current lack of interoperability in the digital downloading sphere, especially for music, said Microsoft's Smith. While interoperability should be the ultimate goal, implementing will be a major engineering feat, he said.

“That should not dissuade us,” he said, “But it is one of the most complicated engineering issues.”

Internet service provider Google has been on the copyrighted content hot seat as of late because of illegally posted copyrighted content on the popular YouTube.com, facing a lawsuit from Viacom.

The company has been working on “Claim Your Content,” which essentially is a content management tool that will “empower” content owners to get rid of unauthorized content on YouTube.com with one-clock takedown tools, said Kent Walker, VP and general counsel for Google Inc.

The company also is experimenting with filtering technologies, audio fingerprinting and watermarking to help protect intellectual property, he said.

“You're going to see a lot over the next few months,” Smith said.

YouTube's Claim Your Content allows content owners to choose when there's a promotional opportunity to be gained by leaving content live on the site, he said.

“Going back to the SNL clip ‘Lazy Sunday,' when it was on YouTube, you could say that revitalized ‘Saturday Night Live,' at least according to Lorne Michaels,” Smith said, referring to comments the SNL creator recently made to the New York Observer.

Unsurprisingly, Richard Cotton from NBC Universal had a response to that.

“Well, you could also look at it as that that SNL clip is what launched YouTube,” he retorted jokingly.

Viacom EVP and general counsel Michael Fricklas said sites like YouTube and high-profile content owners are going to have a “mutual symbiotic relationship.”

“Our content helps drive distribution and distributors rely on us and we rely on them,” he said. “There are promotional benefits [from sites like YouTube]. But we feel like it's up to us to decide what to give away and when. It's a business decision.”

No one wants to squash creativity or fair use, panelists said. The major issues for content owners are about wholesale piracy of complete content, not about putting the kibosh on mashups and all user generated content that incorporates clips from copyrighted works, panelists said.

“That is not the countervailing piracy issue,” Cotton said. “But its existence gets thrown up as smoke screen against the other.”

That doesn't mean content owners can condone creative innovative Web users who “break the locks” and circumvent copy protection to create cool, clever works that often serve promotional purposes, Disney's Braverman said.

It may mean that content owners open up selected materials that foster that kind of fair use creativity, panelists said. “We do want to encourage creativity,” Fricklas said.

Viacom recently admitted it had mistakenly mandated that some fair use clips using its content be removed from YouTube.

That was kind of like “dolphins getting caught in the net,” Fricklas said.

It's easy to get too reactionary, Google's Walker said. Google recently started removing user posted video clips featuring light sabers and “Star Wars” masks out of deference to the Lucasfilm licensed goods.

“But we got a call from Lucasfilm and they said, ‘no leave those up we love that,’ he said.

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