Q&A with Wendy Seltzer Regarding NBC Universal's Request to YouTube to remove NBC material from its site
Yesterday's New York Times reports that NBC Universal asked YouTube, a free video-sharing site, to "remove about 500 clips of NBC material from its site or face legal action under the Digital Millenium Copyright Act." NBC's request followed the soaring popularity and frenzied cross-posting of "Lazy Sunday," a rap video featuring Saturday Night Live comedians Chris Parnell and Andy Samberg. "Lazy Sunday" is currently available on two sites -- it is free on NBCs site and costs $1.99 on Apple iTunes. From the article:
Julie Summersgill, a spokeswoman for NBC Universal, said the company meant no ill will toward fan sites but wanted to protect its copyrights. "We're taking a long and careful look at how to protect our content," she said.
We asked Berkman Fellow Wendy Seltzer (founder of the Chilling Effects Clearinghouse, former staff attorney with the Electronic Frontier Foundation, and now a Visiting Assistant Professor at Brooklyn Law School) some questions about this issue:
Question: Wendy, you blogged this morning that, "I'm sure NBC lawyers need no reminding that unlike trademarks, copyrights do not need to be policed to retain their validity." Could you explain why copyrights do not need to be policed in order to retain their validity?
Wendy: Sure, the confusion often comes about because copyright and trademark are two very different kinds of protection, sometimes lumped together as "intellectual property." Copyright is the author's right to prevent unauthorized reproduction or public performance of a work (among other rights). It can be exercised at any time, and is not abandoned by a lack of enforcement. That means copyright holders are free to pick and choose their targets, to stop only those whose appropriation is causing them harm.
Trademark, by contrast, is the right to protect a brand as a source-identifier. If a trademark holder let others use the mark for commercial identification, so "Saturday Night Live" was no longer associated with NBC's show but with any Saturday night TV, it would no longer serve that function. (In practice, very few trademarks are lost to abandonment or genericide either).
Question: If that's how copyrights are protected, how should copyright holders respond to situations like these?
Wendy: The first question should always be: "Is this hurting us?" and the second, perhaps, "will publicity around a takedown demand hurt us more?" (see Chilling Effects for examples). If a copying isn't hurting the copyright holder, there's no reason to stop it. If it starts to hurt, you can always object later. (The overly cautious lawyer might send a letter saying the current activity was authorized under a temporary, revocable license.)
Question: You comment that NBC "seems to be shutting down its own best advertising." Why is this the "best" form of advertising for NBC?
Wendy: In this case, it seemed the video's circulation online was driving more people to watch SNL on television, (and likely encouraging them to watch it live so they could have the first crack at talking about new episodes with friends) -- attracting viewers especially among the young, connected demographic advertisers want to reach. People were making websites, t-shirts, and remixes, and all were helping to build an audience for whatever the Lonely Island team did next. Now, searches on "Lazy Sunday" turn up references to the takedown well ahead of NBC's site.
Question: What does this tell us about tomorrow's world of advertising? What are the rule set changes?
Wendy: Media today are competing for attention. While it may be hard to predict what will attract attention, savvy marketers should embrace it when they find it. NBC could have asked YouTube for an acknowledgement and link to NBC's website, for example, if they wanted to bring people back to the network's pages and tie the video to the television experience.
Julie Summersgill, a spokeswoman for NBC Universal, said the company meant no ill will toward fan sites but wanted to protect its copyrights. "We're taking a long and careful look at how to protect our content," she said.
We asked Berkman Fellow Wendy Seltzer (founder of the Chilling Effects Clearinghouse, former staff attorney with the Electronic Frontier Foundation, and now a Visiting Assistant Professor at Brooklyn Law School) some questions about this issue:
Question: Wendy, you blogged this morning that, "I'm sure NBC lawyers need no reminding that unlike trademarks, copyrights do not need to be policed to retain their validity." Could you explain why copyrights do not need to be policed in order to retain their validity?
Wendy: Sure, the confusion often comes about because copyright and trademark are two very different kinds of protection, sometimes lumped together as "intellectual property." Copyright is the author's right to prevent unauthorized reproduction or public performance of a work (among other rights). It can be exercised at any time, and is not abandoned by a lack of enforcement. That means copyright holders are free to pick and choose their targets, to stop only those whose appropriation is causing them harm.
Trademark, by contrast, is the right to protect a brand as a source-identifier. If a trademark holder let others use the mark for commercial identification, so "Saturday Night Live" was no longer associated with NBC's show but with any Saturday night TV, it would no longer serve that function. (In practice, very few trademarks are lost to abandonment or genericide either).
Question: If that's how copyrights are protected, how should copyright holders respond to situations like these?
Wendy: The first question should always be: "Is this hurting us?" and the second, perhaps, "will publicity around a takedown demand hurt us more?" (see Chilling Effects for examples). If a copying isn't hurting the copyright holder, there's no reason to stop it. If it starts to hurt, you can always object later. (The overly cautious lawyer might send a letter saying the current activity was authorized under a temporary, revocable license.)
Question: You comment that NBC "seems to be shutting down its own best advertising." Why is this the "best" form of advertising for NBC?
Wendy: In this case, it seemed the video's circulation online was driving more people to watch SNL on television, (and likely encouraging them to watch it live so they could have the first crack at talking about new episodes with friends) -- attracting viewers especially among the young, connected demographic advertisers want to reach. People were making websites, t-shirts, and remixes, and all were helping to build an audience for whatever the Lonely Island team did next. Now, searches on "Lazy Sunday" turn up references to the takedown well ahead of NBC's site.
Question: What does this tell us about tomorrow's world of advertising? What are the rule set changes?
Wendy: Media today are competing for attention. While it may be hard to predict what will attract attention, savvy marketers should embrace it when they find it. NBC could have asked YouTube for an acknowledgement and link to NBC's website, for example, if they wanted to bring people back to the network's pages and tie the video to the television experience.