podcasting & the lawcyberlaw.stanford.edu/attachments/suls talk fall 06.pdf · podcasting is...
TRANSCRIPT
podcasting & the law(rules for the revolution)
Colette Vogele Vogele & Associates
Stanford Center for Internet & Society
Podcasting
ipod + broadcasting?
audio/video programs + automatically + via a ‘publish & subscribe’ model
rss
key components: computer, internet, microphone, free software
brief history
social computing, web 2.0
blogging’s impact
technology (rss+)
first used in sept. 2004
how are people using podcasts today?
how to?Record your content
Edit your content (add intros/outros, music, delete your ums/uhs)
Upload the audio/video content to web server
Create your RSS feed
(opt.) validate your feed (http://rss.scripting.com)
Submit your podcast episode to podcast directories
by the numbers...More than 22 million US adults own an iPod or other MP3 player (13% of men and 9% of women)
20% of the 18- to 28-year-old market owns an iPod or other MP3 player
29% of the people who own an iPod or MP3 player have downloaded a podcast
This translates to 6 million U.S. adults who have downloaded podcasts. (source: Pew Internet & American Life Project)
more numbers...
Forrester Research expects 12 million households to be regular podcast listeners by 2010.
for the average 21-year old kid (which is the heart of IMers), 62% of content consumed is generated by someone they know. (tony perkins)
overview of key legal issues
copyright
trademarks
right of publicity
copyright
copyright
a few basics - review of what you’ve already learned in class
3 messy issues
copyright - roots
protects creative expressionconstitutional: art. I, § 8, cl. 8statutory: 17 USC § 101“engine of creativity”in balance with the First Amendment
what sorts of things do we find in podcasts that are protected by copyright?
subject matter
§ 106 rights
what rights under the copyright act are implicated by podcasting?
issue 1: is a podcast a
“public performance”
is a podcast a “public performance”?
US Copyright Office says...?
Courts say...?
Aggregators (like BMI/ASCAP/SESAC) say...?
Commentators say...?
do i need permission?
you need permission except when you:
use a fact, idea, theory, slogan
use a work from the public domain
use a US government work
are making a ‘fair use’
use ‘podsafe’ content
are in certain educational settings
fair use(a hornet’s nest)
copying any protected material for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, scholarship or research
fair use factors
Purpose/Character of the use
Nature of the copyrighted work
Amount and substantiality in comparison to overall work
Effect on market for copyrighted work
AND that “fifth factor”...
issue 2: mash-ups and remixes
charlie brown, dj dangermouse gray album...
are these permitted under copyright?
should they be? should they not be?
2 misconceptions
disclaimers
attribution/acknowledgments
Fair Use Resourceshttp://www.ourmedia.org/learning-center/topic/law
http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf
http://centerforsocialmedia.org/fairuse
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html
http://www.law.duke.edu/cspd/comics/
if i don’t have permission...
clear the rights by getting a license
risk getting sued...
maybe even go to jail (if you’re counterfeiting) ...
issue 3: rss
if a content producer sends her content out by an rss feed, is there an implied license to do this?
if so, what is the scope of such a license?
right of publicity
right of publicity
Every individual or personality has a property right in the use of their name, voice, signature, photograph or likeness. (RCW 63.60.010)
ROP: Infringement“Any person who uses … a[n] individual's or personality's name [etc.] on or in goods … entered into commerce in this state [or for advertising or fund raising], or if any person disseminates … such advertisements in this state, without written or oral, express or implied consent … has infringed such right …” (RCW 63.60.050)
ROP: Infringement
Does not matter whether for profit or not for profit.
ROP: Remedies
Anyone who infringes “shall be liable for the greater of” $1,500 or actual damages and “any profits that are attributable to the infringement and not taken into account when calculating actual damages.” (see RCW 63.60.060)
Also: injunctions, impoundment, destruction, and attorneys fees
ROP: CaliforniaAny person who knowingly uses another’s name, voice, likeness “in any manner” on or in a product (or for advertising a product or service) without prior consent “shall be liable” (CCP § 3344)
Liable for actual damages (min. $750) + profits resulting from the injury, punitive damages, and attorneys’ fees
ROP + First AmendmentStatutory Exceptions under Calif Law:
Use of likeness of an employee where image is incidental (not essential) = rebuttable presumption
For use in connection with news, public affairs, or sports broadcast or account, or any political campaign, consent is not required.
Not applicable against a news organization (etc) that publishes the images/likeness, unless they had knowledge that the use was unauthorized.
ROP: bottom line
Like blogging, no legal cases to date dealing with ROP in a podcast.
Bottom line is that for public figures, the podcaster can use the name/likeness so long as it is done (1) in a truthful way and (2) does not imply a false endorsement of the podcaster/podcast by the public figure.
Indiv v. Personality
For an “individual” (a natural person) rights continue for 10 years after death.
For a “personality” (any individual whose “publicity” has commercial value) rights continue for 75 years after death.
trademarks
two flavorsInfringement: Likelihood of confusion standard
Dilution (“famous” marks only)Tarnishment (promoting a product that is considered offensive -- e.g., “Disneyland” for X-rated podcast)
Blurring (when consumers blur two companies in their minds -- e.g. “Nike Hemorrhoid Discussion Group”)
when permission NOT needed
Like in traditional media and practice (in the off-line world), “nominal” or “editorial” uses are permitted.
Comparative advertising uses also OK.
No obligation to identify every mark as a “registered” trademark.
legal implications
Be cognizant, as in any advertising, how TMs owned by others are used.
Police use of a business’ trademarks, but be careful not to overstep the rights granted by TM law. (“For Dummies” Example)
issue 5: Does Apple own all things “pod”?
Apple accuses “mypodder” for an mp3 player and “podcast ready” for a podcatcher infringes its TM for “iPod” for digital media players. What do you think? (http://www.podcastready.com/)
Should podcasters use the term “NETCAST” instead?
predictionsContent distribution is changing rapidly - user interaction is growing
Podcasting is one of the first technologies that businesses are implementing quickly - it’s easy.
Video podcasting will grow more rapidly than audio podcasting or blogging, but only as bandwidth opens up & remains available, and if delivered to the device we carry most (probably cell phones).
thank you.
Colette Vogele, Esq. Vogele & Associates
email: [email protected]: colettevogeletel: 415.751.5737
this presentation is licensed under a creative commons BY-NC-SA license. please attribute: “Podcasting & Law (c) 2006 Vogele & Associates”