User Generate Parody Videos and Copyright Owners’ Duty Under DMCA

By James P.

    With the increasing popularity of user-generated content on the Internet and the ease with which users can manipulate media with readily accessible technology, it is no surprise that copyright owners are aggressively fightin to keep unauthorized content off websites like YouTube. At odds with the Copyright Owners’ interest in controlling the use of their content are the rights of individuals to express their own creativity while engaging in a “fair use” of another’s work, often through the creation of parody. A particularly dramatic scene from the 2004 film “Downfall” is a magnet for such parody creators, who superimpose captions over the film, “chang[ing] Hitler's words …  into satirical commentaries on everything from annoying World Cup vuvuzela horns to the collapse of real estate values.” Evangelista, Benny, Parody, Copyright law clash in online clips, San Francisco Chronicle, July 22, 2010 (available online at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/22/BUQV1EHV9G.DTL). In an effort to protect its copyright, Downfall’s producer began utilizing YouTube’s online mechanism for identifying copyrighted works.

    Even though the producer’s and studio’s main argument was that the entire film “Downfall” can be “viewed online in 10-minute increments without compensation for the studio, producers or actors.”  However, the studio’s search for violations “also netted the parody videos,” a significant number of which have been removed pursuant to YouTube’s compliance with the Digital Millennium Copyright Act. The question remains, in its zealous attempt to protect copyrighted work from infringement, what steps must a copyright owner take to ensure that it does not target fair use of a copyrighted work and trigger erroneous takedowns? 

Fair Use Under US Copyright Law

    The fair use doctrine is found in Section 107 of the Copyright Act, 17 U.S.C. Section 107.  Under that section, in order to determine whether a work qualifies for the fair use defense, courts must look at (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. This statute doctrine codifies the federal common-law test articulated in Folsom v. Marsh (1841). As Justice Storey articulated, “[a] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.” Folsom v. Marsh, 9 F.Cas. 342 (1841). To test the reviewers true intentions, Justice Storey articulates a balancing test that “look[s] to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. I.d. Section 107 applies not only to criticism to all uses of copyright that meet the four-factor balancing test.

Fair Use and the DMCA?

    An unanswered question in Fair Use Doctrine is whether a Copyright owner must undertake an analysis of whether an allegedly infringing work qualifies for the statutory fair use defense before demanding a takedown under the Digital Millennium Copyright Act. The DMCA (17 USCA 1512(c)) creates a safe harbor from copyright infringement liability for an ISP who timely complies with a copyright owner’s notice to take down a work. The notice must be accompanied by an affidavit stating that the owner has a good faith believe that the work in question is infringing. The ISP then must take down the allegedly infringing work.

    Recently, however, the Northern District of CA determined that a copywriter owner must make “a good faith consideration of whether a particular use is fair use” before issuing a takedown notice, reasoning that “[r]equiring owners to consider fair use will help “ensure[ ] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Cal.,2008). Lenz involved a mother who posted a short clip of her toddler dancing to a Prince song on YouTube, triggering a DMCA notice to YouTube from Universal. The case is currently on appeal to the 9th Circuit Court of appeals. Should the 9th Circuit uphold the District Court’s ruling, Copyright owners must consider whether an allegedly infringing use is indeed a “fair use” before filing a takedown notice in the 9th Circuit.

Do the “Downfall” Parody Videos meet the Statutory Fair Use Test?

    Any inquiry into whether a particular use meets the statutory “Fair Use” test under Section 107 is fact-intensive. For example, the question is not whether the “Downfall” Parody videos as a complete set meet the “Fair Use” requirements. Indeed, there will be cases in which some videos do and some do not. Given the competing interests between the copyright owner and the parody creators, it seems wholly unfair to me that the producer of “Downfall” can systematically scan YouTube for any uses of their film and utilize the DMCA notice and takedown provisions to block all uses, without an inquiry into whether the particular use qualifies as “fair use.”

Should Human Genes be the Subject of Patent Protection?

By Eunji C.

    The mapping of the human genome was a huge innovation that had great possibilities for early detection of diseases. For some patients and doctors, however, this has been disappointing to put it mildly. While the United States Patent and Trademark Office (USPTO) does not grant patents over the actual genes in the human body, it grants patents for the purified and isolated gene sequences and genetic tests which correlate the genetic sequences and medical conditions. This has led to a monopoly on genetic testing for certain diseases such as breast cancer.

    The Constitution grants the Congress with the power to grant patents to "promote the Progress of Science and useful Arts." U.S. Const. art. I, § 8, cl. 8. The idea of the patent system is quid pro quo. The patent owner is granted the right to exclude others from making, using, or selling the patented invention for 20 years. This right provides an incentive for inventors to invest their time and effort on new innovations and recoup the cost as well as award them for their contribution to the progress of science. In exchange, the public receives benefits from new inventions and developments. Additionally, inventors are required to provide a full disclosure of the invention, making the invention public knowledge once the period of exclusivity is over. This must be a careful balancing because too much patent protection can impede rather than promote the objective of patent protection. Lab. Corp. of Am. Holdings v. Metabolite Labs,. Inc., 548 U.S. 124, 126-127 (2006).

   In order to be granted a patent, the invention must meet the requirements set out in the Patent Act: patentable subject matter, utility, novelty, and nonobviousness. The subject matter requirement has been interpreted very broadly as “anything under the sun that is made by man.” Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980). This, however, is not without limits. The Supreme Court stated that “laws of nature, physical phenomena, and abstract ideas” are not patentable. Id.  at 309. These are not inventions which were meant to be protected because they are naturally occurring phenomenon.

    The USPTO has been granting patents on purified and isolated human genes based on the idea that purified DNA should be treated as any other chemical compound. The word "isolated" has become very powerful in distinguishing a claimed gene from its naturally occurring counter parts. Currently, about 20% of human genes are patented.

    In the case Association for Molecular Pathology v. United States Patent and Trademark Office, Seven patents relating to BRCA1 and BRCA2 genes have been challenged as invalid. 702 F.Supp. 2d 181 (S.D.N.Y. 2010).  These genes correlate to increased risk of breast and ovarian cancer. Myriad Genetics Inc. owns the patents at issue and sells BRCA screening tests at about $3000 per test. Myriad stopped other companies and researchers from BRCA screening through cease and desist letters and lawsuits.

    The opponents of human gene patents argue that gene sequences are products of nature and thus are not patentable subject matter. Additionally, they argue that these patents are unconstitutional because they impede rather than promote the progress of science. Many researchers have ceased their work on the BRCA genes due to fear of a lawsuit, which impedes the development of improved genetic testing. Patent owners can block alternative tests and research that could lead to better and cheaper testing. In the worst case scenario, patent owners could prohibit others from conducting research while not even practicing the research themselves. Researchers and doctors have become infringers, subject to harsh monetary penalties. Myriad also does not permit researchers to tell the results of the tests to the patients involved, which makes them unable to meet their ethical obligations to the people in the research.

    More importantly, the gene patents are having negative impact on the patients. Many of the plaintiffs in the case are patients who could not afford the tests. The testing is not covered by a number of insurers. Also, patients are unable to get a secondary test from another lab to confirm their results before having to make difficult decisions. This violates the patient's right to bodily integrity and health and the idea that a person should be able to look at their own genome and see if there is a mutation without paying a license fee to someone else. In Ontario, Canada, where the patents are ignored, the testing costs about one third of the cost in the United States.

    There is also an increasing tendency to patent upstream inventions such as research tools instead of the products of research, as a way to make money on license agreements.

    Proponents of the gene patents argue that patent protection has been given to other innovations that are also derived from nature. Myriad argued that the patents are on the purified form of naturally occurring compounds. They argued that since the genes do not exist in nature in pure form, this satisfies the difference needed for the patent protection. Proponents of gene patents also argue that patents allow for the much needed investment. Researchers might be deterred from developing innovative tests and drugs if they can't protect the fruits of their labor. Myriad argued that substantial private investing went into their search on the BRCA genes since it takes about 5-15 years and $100 million to bring a new biologic drug to market. Myriad also pointed out that they are constantly improving the testing process and that they will do a second interpretation of the results.

    The District Court denied Myriad's argument and said patentable subject matter must be markedly different from a product of nature; there must be a transformation which leads to a distinctive name, character, or use. The court’s decision is based on the idea that there has been too much focus on the term "isolated" when the entire utility of the isolated gene lies in the fact that it is functionally indistinguishable from the natural version of the gene. This is because the purified form has the exact same information as the gene in the human body that the purified form can be used as a diagnostic tool. The court’s opinion concluded that that purification of a natural product, without more, is insufficient to transform the product into a patentable subject matter. The District Court recognized that this was a valuable scientific achievement for which Myriad deserves recognition, but said that that is not the same as being entitled to a patent. The case is now in the Court of Appeals.

    The outcome of this decision could have significant impact on the health care and biotechnology industry. One major factor is the patient's right to information and health care concerning their own body. With breast cancer being the second cause of death for women in the United States, this issue has impact over a major population. Another consideration is the biotechnology industry. Unlike the technology industry with lower development costs, biotechnology industry has huge regulatory and expense hurdles. This could make it impractical without the patent protection to recoup the cost needed. Additionally, while the decision of a District Court may not have strong value as precedent, if the Court of Appeals decides to uphold the District Court's decision, this will have an impact for all of the human gene patents. Companies that have filed their human gene patent applications, have already disclosed their innovation. If these patents become invalid, the innovation could become public knowledge without the patent applicants being rewarded for their innovation, and investments in the company would probably lose value.

    There are other possible solutions to address concerns of both sides of this question. For example, the current research exception is very narrow.  If there was an expanded exception for research, the gene patents would not impair the progress of science. Combined with a limited patent which excludes research and diagnostic tests, or a mandated compulsive licensing, patent owners could continue to benefit from the patent protection while research and personal health rights would not be affected.

    Considering the far reaching consequences of the BRCA genes decision, it is especially critical to ensure that these patents truly serve the goal of the patent system. With a creative approach, it is possible to promote innovation in the science industry while preserving the personal right to access and make informed decisions over one's own body.

Cyberbullying, Schools, and the Constitution

By Dale R.

     The suicides of two teenagers became the center of national attention in 2010.  Fifteen year old Phobe Prince, an Irish immigrant in Massachusetts killed herself after several months of being the victim of bullying at school and on-line.. More recently, an eighteen year old college freshman named Tyler Clementi jumped off the George Washington bridge after his roommate used a computer camera to record Clementi engaged in sexual activity with another man, and posted the video on the Internet. Both suicides resulted in criminal charges being filed against the alleged bullies.

    The suicides turned media and national attention to the growing problem of cyberbullying. Researchers Sameer Hinjua and Justin W. Patchin at the Cyberbullying Research Center found that about 20.8 percent of students under eighteen were the victims of cyberbullies according to a study conducted in February 2010.

    This commentary will discuss possible school responses to cyberbullying and potential legal restrictions that might apply to those responses.

    The Supreme Court famously upheld the free speech rights of students in the 1968 case Tinker v. Des Moines Independent School District. In Tinker, school administrators punished several students for wearing black armbands to protest the Vietnam War. The Supreme Court via Justice Fortas dismissed the suspensions as violations of the First Amendment. The Court held that schools can only discipline speech if it is creates a "substantial disruption" to the daily operation of the school. Later Supreme Court cases placed limitations on Tinker's sweep. For example, in Fraser v. Bethel School District (1986), The Supreme Court upheld the suspension of a student who, at an assembly, gave a speech filled with sexual innuendo. Chief Justice Burger wrote that the suspension was justified because schools play a vital role in teaching proper civil discourse and could punish students for speech that is lewd and vulgar.

    Courts often have found that many instances of cyberbullying and other cyberconduct by student's violate the Tinker standard. For example, the Pennsylvania Supreme Court upheld a student expulsion for a website the student created even though the site was created off campus.  In this case, J.S. v. Bethlehem School District, J.S., created an anonymous website attacking school administrators and teachers. He compared one teacher to the Nazis and asked for donations so he could hire a hitman to kill her. The Principal contacted the police and F.B.I. to discover the creator of the website and decided to expel J.S. after the F.B.I. stated they would not file criminal charges against him.

    The majority upheld the expulsion even though J.S. did not tell anyone at the school about the website and took it down voluntarily. The Court reasoned that Tinker's substantial disruption standard was met because the teacher-victim suffered emotional distress and needed to take a leave of absence because of the remarks.

    Many jurisdictions agree with the decision reached by the Pennsylvania court in J.S. and hold that schools need broad power to punish students for unacceptable conduct even if the actions occur off-campus and not during school hours.

    But in other jurisdictions, there are some courts that reach the opposite result. A federal court in California held that a suspension for cyberbullying violated the First Amendment and Due Process in J.C. v. Beverly Hills Unified School District. J.C. created a video mocking a fellow student named C.C. as a slut and posted the video on YouTube. The court noted that J.C., unlike J.S. in the case above, wanted other kids at school including the victim to see the video. J.C. received a two-day suspension. The court held that her suspension violated J.C.'s First Amendment rights because there was no substantial disruption to school activities and the kind of name-calling J.C. did on her video was the every day kind of bullying that school administrators can expect from students.

    J.C. also received support for her argument from California Education Code Section 48900(s). The court noted that the statute severely limits the scope of school jurisdiction and no reasonable person can interpret it to allow a school to punish a student for off-campus activities that were not connected to any school function or event.

    Many states are considering or have passed legislation to deal with cyberbullying. Oregon's law may represent a well-balanced approach. The Oregon law requires every school district set up a policy for cyberbullying but encourages schools to consult with students, parents, and teachers to create the policy. School districts are required to explicitly tell student's about the policy and the consequences of violations. The victims of cyberbullying maintain their rights to bring private lawsuits against their attackers but the statute itself expressly does not create a private right of action.

    My prediction is that the Prince and Clementi suicides will pressure states and school administrators to punish students for off-campus conduct even if it greatly expands school power in constitutionally questionable ways. This is troubling to me because it is probable that cyberbullies often attack their victims during school-hours as well non school hours and school administrators should focus their attention on in-school bullying to solve both problems. This desire to take action against cyber conduct may lead to harsh punishments for what might be considered  protected speech in other contexts.