Daily Debrief: Behind the bounce in Elmo Live's popularity
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>> This is Declan McCullough from CNET News. I'm here with Paul Levy of Public Citizen. Thanks, Paul, for joining us.
>> Glad to be here.
>> Paul is in Washington, D.C. most of the time. He joins us here today in San Francisco. He's here to argue a case before the Ninth Circuit. And his client runs a website. And the website uses the trademark of a Window manufacturer. His client sells these windows and hence the dispute. Paul, could you briefly summarize the case?
>> Well, the question in the case is whether the anti-cybersquatting law, which was enacted back in 1999 to deal with the problem of extortion at registration of domain names by people who don't have any legitimate use for them, should be stretched to apply to this case where essentially the window manufacturer has a trademark infringement claim. The advantage of suing under the cybersquatting law is that if they're successful as they were, they get awards of statutory damages without having to show that they actually suffered any damages.
>> And so in other words what you're saying is that the plaintiffs in this case, the manufacturer, are kind of misusing a law that was designed to go after or to prohibit something entirely.
>> Right. And because it provides heightened damages, and they prevailed on summary judgment on their cybersquatting claim even though the Court agreed that there were issues left to be decided on infringement. And our view is that this was a statute that was adopted for a narrow purpose. It should be applied for its purpose when it's appropriate, but that you shouldn't, basically, contort a statute that was enacted for something else to accomplish an objective that it wasn't enacted to obtain. If you want to change the law, go back to Congress or just bring your regular infringement claim.
>> Moving on to the YouTube and McCain copyright dispute. This was something that your organization took an interest in. The John McCain Presidential Campaign has used excerpts from news shows, news broadcasts, to illustrate some of its ads. And the news organizations don't always like this. And so then they say -- send takedown notices invoking copyright law to YouTube. And the McCain Campaign recently said, "Well, this is a presidential election. Let's -- essentially have special treatment." And YouTube said, essentially, "Well, no. Let's not do that." What's your take on the situation?
>> Well, you can understand the McCain Campaign's concern, and the Obama Campaign's for that matter as well, about having their political advertising taken down. And perhaps there's an argument to be made for legislating separately with respect to purely political speech. But we think this is really representative of a broader problem of the abuse of use of the DMCA to take down protected speech. And rather than carving out a special exception, which is tempting in the heat of a political campaign, it would be better to go back and fix the law so...
>> And so -- then what is your solution? Fix the law in what way? We've been -- we've celebrated, what, the 10-year anniversary of this? Has it been that bad?
>> There are certainly a number of cases that we've seen in our practice -- I can't come up with any specifics sitting right here -- but in our practice where people with perfectly legitimate uses of otherwise copyrighted material have put in small snippets that would be fair use in any sense of the word. But somebody wants to suppress the speech, and in order to suppress the speech, they invoke a copyright claim that they...
>> So then how do you fix the DMCA?
>> Well, I -- there are a few things that you can do that we've suggested. One is to provide that the material doesn't actually come down until there's been an opportunity on the part of the people who have put up the speech to respond. You could say that just as there are statutory damages for copyright infringement, perhaps there ought to be statutory damages for a wrongful takedown. Perhaps you should say that they have to give notice to the speaker as well as to the I...
>> Hosting service.
>> To the hosting service. Perhaps you should say that they should have to post their takedowns publicly. We had the Chilling Effects website, but perhaps there ought to be a government service. You could have user fees. Every time you send a takedown notice, pay into the takedown posting service and the price of doing a takedown is that you have to expose your takedown to the public. So that not only the person who made the speech, but other members of the public who might be amused or disappointed by the misuse of the statute by a powerful figure would then judge the figure accordingly.
>> Now, Public Citizen's not exactly a right-wing group, I think it's fair to say. You're affiliated with Ralph Nadar. Do you -- what do you think will happen if, say, an Obama administration happens. That is, if Obama's elected, how will that affect copyright law?
>> It's hard to say. I -- the one dealing I had with the Obama senatorial office, when we were fighting over the amendments to the trademark dilution law, they displayed -- and whether it was the staff or whether it was Senator Obama himself, of course, you never know -- but they displayed a sensitive understanding to why dilution law shouldn't be as favored as infringement law in terms of protecting the public interest. I wonder if the Obama administration will be better on copyright issues. Of course, that remains to be seen. The issue will have to be fought out in Congress. Now, obviously, there are some larger issues confronting the country. I can't imagine that this will be at the top of anyone's list of things that ought to get done. But I do expect that there will be a new Congress, a substantially different Congress. And there will be a lot of people looking to do a lot of new things, and I hope that we are able to put this on the agenda.
>> This is Declan McCullough for CNET News, with Paul Levy. Thanks for joining us.