The Trouble With International Copyright Infringement

You know how every couple of years movie studios will release two movies at the same time with similar premises (Tombstone and Wyatt Earp, Armageddon and Deep Impact, and this year's coup d'grace, Hercules and The Legend of Hercules)?* I recently experienced this very phenomenon in my law practice. Last week, two unrelated individuals came to me with the exact same issue: someone overseas was taking credit for their work and they wanted to know how they could stop it. I gave them several options:

• They could send a cease and desist letter directly to the infringer.
• They could send a DMCA takedown notice to the infringer's ISP and have the infringed work removed from the web, as this artist recently did.
• They could try to negotiate a licensing fee with the infringer and work out an agreement for the infringer to keep using the work while paying a fee to the artist (it's been my experience that most infringers don't realize they're infringing or don't realize there's anything wrong with it. Very rarely have I encountered someone who does it maliciously).
• They could sue (which, for reasons I mention below, can be problematic).

None of these options were well received and I don't blame them. The truth is, fighting back against copyright infringement is hard enough to do domestically. It's costly, time-consuming, and requires specific rules to be followed (i.e. registration of the work, filing in federal court, etc). When you add in the international aspect of the infringement, things get much tougher; unless you're super rich, it may not make sense to fight it.

Unlike domestic copyright law, international copyright law doesn’t really exist as a single monolithic area of practice. The U.S. Copyright Office even has a page explicitly telling you that “[t]here is no such thing as an 'international copyright.’" That's because copyright laws are determined by each individual country, meaning that copyrights created in one country will probably not enjoy the same rights and protections in others. That's how a work of art can be in the public domain in France, for example, but still be protected under copyright law in the U.S.

In order to normalize copyright protections across international borders, two international treaties were enacted, both of which the U.S. signed onto: The Berne Convention and the Universal Copyright Convention (UCC). Very generally, these two treaties are designed to allow artists the same level of protection regardless of which country the work originates from or which country the infringement takes place. The Berne Convention in particular allows artists to use the copyright laws of whichever country the infringement took place in, even if the work originated somewhere else. So if your work originated in Germany but was infringed in Lebanon, Lebanon would be required to treat your art under its copyright laws the same way it would treat art of Lebanese origins.

There are two hiccups with these treaties, however. First, they only apply to signatory countries. So if your work is infringed in Iran or Somalia, neither of which are signatories to the Berne Convention or the UCC, you're pretty much screwed. Second, even if your work is infringed in a member country, you're stuck filing your lawsuit in the U.S. unless you're rich and can afford to defend the copyright overseas, you have to file your claim in a U.S. court, and that means the infringing party probably won't fly to the U.S. to answer the lawsuit. The good news in that scenario is that you'll win a default judgment. The bad news is, so what? The infringer is still at large and is essentially under no obligation to stop infringing your work.

This is a tough area of law and I'm the first to admit that I don't know it well. If there are any attorneys out there who specialize in defending copyrights from international infringement and want to enlighten me, I'm happy to listen and learn.

* Wikipedia refers to this phenomenon as "Twin Films," but we can do better. I suggest "The Cinema Duplication Effect."

How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

1. Your signature
2. Identification of your work that was infringed
3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
4. Your contact information
5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.