Jane C. Ginsburg: Separating the Sony Sheep from the Grokster Goats: the Future of Copyright-Dependent Technology Entrepreneurs

Seminar by professor Jane C. Ginsburg, at UOC headquarters, 25 June 2008, about copyright liability of user generated content practices.

Copyright infringement actors

Who’s implicated?

  • Users, for uploading copyrighted material, make copies, remix material, etc. If there is no fair use, downloading (and storing in one’s own computer) is a copyright infringement too. Users are directly engaged in copyright infringement.
  • Websites, and their operators, for making available copyrighted material. Website operators are directly engaged in copyright infringement too. What happens with host service providers and access providers? Hosts too are directly implicated, as illegal copies are stored in their computers.
  • Aggregators of links, though they do not actually have the content on their facilities, they are directly implicated too. But they are in practice making the content available (in a very broad sense) by linking to the one that put it online. A lighter interpretation of the Law would consider these agents as implied in an indirect (not direct) way to copyright liability.
  • P2P software distributors and sites, as in the previous case, are indirectly implicated by enabling access to copyrighted content.
Jane C. Ginsburg
Jane C. Ginsburg

To be liable for copyright infringement, the sole existence of the digital file is considered a copy, and hence an illegal copy. On the other hand, technically the transmission of the file should be completed to imply copyright infringement, so not only making the file available but having accessed/copied it should be demonstrated (which is very difficult to) to imply such an infringement. Due to technical difficulties, normally the defendant is asked to demonstrate that actual access did not too place.

Host service providers and access providers, though directly (or indirectly, depending on interpretation) related with copyright infringement, usually have special regulation regimes to protect their economic activities.

Kinds of copyright infringement

Contributory infringement: you furnish the means, with knowledge, to enable copyright infringement. If these means are capable of substantial non infringement use, then the distribution (e.g. mp3 reproducers) is lawful, even if means can be used unlawfully. The problem is what substantial really stands for. So the usual defence is about providing evidence that no knowledge of criminal activities were taking place (e.g. Kazaa not having a central directory of files).

Inducement: what’s the intention behind a specific activity? There’s inducement if there is an explicit promotion for a certain (illegal) use. There’s inducement if there is no filtering (when possible), no intention to prevent illegal uses. And there’s inducement too if there is a business plan closely related to the illegal use. Failure to filter is usually related to a business plan based on this lack of filtering out illegal content.

Vicarious liability: direct financial benefit from the infringement, with right to control it (e.g. hire a band that performs copyrighted music; advertising in sites that illegally distribute copyrighted content).

User Generated Content and copyright liability

A paradox (in legal terms): even if the amount of illegal content on YouTube is a minor part of the whole, the share of visited illegal content is the majority of it. And even if illegal content can be taken down, it comes up within few minutes. [a detailed analysis of YouTube’s liability ensues, too dense to track here].

More info


Jornades de la Penedesfera: Blogs, Freedom and Governance

On Friday June 13th, 2008, I’ve been invited to chair a session about Virtual citizen networks at the Jornades de la Penedesfera, a meeting about blogs and local citizen engagement.

The session will be shared with very interesting people such as Ramon Roca / Joan Llopart (Font-rubí), Cristina Barbacil, Manel Brinquis, Ismael Miñano, Daniel García Peris and Marc Vidal.

As there’s quite a lot of people for the short time we have, I will be really focused on few main lines, all of them extracted from my article entitled Blogs for e-Government: sufficient condition, but not necessary.

  • The development of the Information Society seems to be related with how citizens can exercise their political rights and citizen liberties, especially those related with freedom of speech and liberty of thought.
  • This general statement seems to still apply in a second level of application: the capability to express one’s identity — such as gender, a part of the afore mentioned rights — seems also to be related with the part of the development of the Information Society related with the Government: e-Government. We can see a relationship between the development of e-Government and Gender Freedom.
  • e-Government also requires and/or demands some level of digital literacy. This digital literacy is, at its turn, a need to self-expression on the net beyond the basic needs in infrastructures.
  • On the other hand, we can see that the more time people have spent on the Internet — the more expert web users are — the more they focus on short run, civic oriented activism (and not party oriented politics).

Keeping these things in mind, the question is whether blogs can be, at the same time, an indicator for a high level of digital literacy, a proxy for the health of political rights and citizen liberties, and a signal for politicians that citizen participation and engagement will shift towards civic oriented activism.

More info


Announcement. Course: Network Society: Social changes, organizations and citizens

I’m pleased to announce an event of which I’m part of the organizing committee, the course Network Society: Social changes, organizations and citizens, to take place in Barcelona, Spain, from 15 to 17 October de 2008.

Some info about the course:


Day 1 – Wednesday 15 October

09h00 – 09h30 : Opening
09h30 – 10h30 : Juan Freire – Presentation of the course
10h30 – 11h00 : Café

Citizenship in the Network Society
Chairs: Marc López
11h00 – 12h30 : Carol Darr
12h30 – 14h00 : Tom Steinberg
14h00 – 16h00 : Lunch

Organizations in the Network Society
Chairs: Genís Roca
16h00 – 17h30 : Miguel Cereceda
17h30 – 19h00 : David Weinberger

Day 2 – Thursday 16 October

09h00 – 09h30 : Juan Freire – Presentation of the day

Communication in the Network Society
Chairs: Antoni Gutiérrez-Rubí
09h30 – 11h00 : Andrew Rasiej
11h00 – 11h30 : Café
11h30 – 13h30 : Diálogo Josu Jon Imaz & Miquel Iceta
13h30 – 16h00 : Lunch
16h00 – 17h30 : Enrique Dans
17h30 – 19h00 : Gumersindo Lafuente

Day 3 – Viernes 17 October

Innovation in the Network Society
Chairs: Ismael Peña-López
09h00 – 10h30 : Carlos Domingo
10h30 – 12h00 : Ethan Zuckerman
12h00 – 12h30 : Coffee break

12h30 – 14h30 : Round Table: Freire, Darr, Steinberg, Weinberger, Lafuente, Domingo, Zuckerman, Dans
14h30 – 15h00 : Closing


Collaborative Networks: Towards the Social Network

I have been invited by the Spanish Center of Judicial Documentation (Centro de Documentacion Judicial, CENDOJ) to impart a conference at the III Encuentro de Información y Documentación Judicial de la Red IberIUS [III Meeting about Judicial Information and Documentation of the IberIUS Network].

The idea was to give an overview of what the Network Society is and what are the concepts besides collective creation. Here come my slides (in Spanish):

Full reference and PDF downloadable here.


4th Internet, Law and Politics Congress (VIII). Towards citizenship 2.0?

Notes from the 4th Internet, Law and Politics Congress.
Session VIII

Round Table
Towards citizenship 2.0?

Eduard Aibar, Vice President, Research, UOC.

So, the landscape has changed… but have citizens? has the concept of citizenship so much shifted as, supposedly, has the Web?

Ana Sofía Cardenal, Professor of Political Science, UOC

We’re putting all our eggs in the Web 2.0 basket, but data seem to bring evidence that all the promises of the web do not seem to apply:

  • The demand for political information has not increased despite the supposition that it would be cheaper (in money, in time) to be informed on a digital socielty
  • The supposition that costs of information have decreased is at stake too
  • The participation does not seem to have changed either
  • Few sites collect most links: so information might be cheaper to diffuse… but only in specific sites

What’s the political blogosphere like in Spain? Hypotheses

  • Balcanization: atomization, decentralization
  • Few blogs get most audience, the rest remain invisible. But who are they? Are they influential?

David Osimo, e-Government researcher and activities coordinator, European Commission’s Institute for Prospective Technological Studies

Web 2.0 is an opportunity, but it’s not taking up. So, where or what are the limits?

  • Limited take-up: how to reach the second wave of adopters (after the digerati)?
  • not so important
  • invisible because pervasive
  • not sustainable financially
  • no time for this
  • exclusion
  • social fragmentation
  • intellectual property rights
  • steered by vested interests
  • lack of trust
  • lack of accountability
  • etc.

Different kind of participation, of citizens’ involvement

  • Producing content (3%)
  • Providing ratings, reviews (10%)
  • Using user-generated content (40%)
  • Providing attention, taste data (100%)
  • … of all Internet users (50% of EU population)

It’s not about mass collaboration, it’s about involving specific users, the most relevant ones.

  • There’s a gap from what the Government expected from the Web 2.0 (mass collaboration) with the reality of it (qualitative, relevant collaboration)
  • It’s a new way of doing the traditional “find-contact-ask the expert”: it’s not representative, but highly qualitative
Eduard Aibar, Ana Sofía Cardenal, Joan Subirats, Helen Margetts, David Osimo
Eduard Aibar, Ana Sofía Cardenal, Joan Subirats, Helen Margetts, David Osimo

Helen Margetts, Director of Research, Professor of Society and the Internet, Oxford Internet Institute

Skepticism is about ignorance of the online world.

Evidence shows that people rely on the Internet to find all the information they do not want to force themselves to remember. And the shift towards this attitude has been huge. For instance, if we ask people for politicians’ names, they might not remember them, but this is not political disengage, but optimization of their (memory) resources.

Smallest actions just like using YouTube to upload presumably stupid political videos might not be a lot, but it definitely is something, and it was not there before the Web 2.0.

The Internet has the possibility to reconfigure the dynamics and logic of collective action: allows geographically disperse groups to gather; increases the visibility/exposure of free riders; etc.

Joan Subirats, Professor of Political Science, Autonomous University of Barcelona

Have we adopted a new concept of participation 2.0? Have the new tools or way of behaving?

More individualization, higher presence, constant flow of information that challenges the concept of representativeness. And, indeed, if the majority is more heterogenous, the minority can still represent that majority? And, with such an intense presence and changing scenarios, do the results of the elections (happened 3 or 4 years ago) still apply?

The Web 2.0 challenges the concept of a Government and an Administration designed as benevolent omniscient institutions, that know what’s better for the citizenry… but that now is informed and can have their voice heard.

On the other hand, voting is cheap in effort for the voter. It actually is the cheapest way of participation. So, do we want to increase the burden/costs on the voter? Does he want so?

The web 2.0 leaves plenty of room for autonomy, equality (being aware of the digital divide, of course) and diversity. Does poor in the reaching of consensus and the collective creation of a common, stable project.


Me: Have we to redefine what participation is? is uploading a video to YouTube participation? is forwarding it to my contacts list participation? What’s the blogosphere? A blog? A blog aggregator? A blog + youtube + Flickr + Slideshare +… +…? Is the blogoshpere an unmeasurable hydra? Isn’t it as important as the aggregate the non-aggregate, personal approach of the emitter that can now send the message, more efficiently, with more efficacy. HM: Indeed, the reasons why people participate are many and very different. Thus, it is important to take into account any kind of participation, despite its aggregate impact, as it is a gate to participation itself and to political engagement.

Marc López: how can we use the Web 2.0 to operate smallest changes (e.g. to decide the menu of my children at their school with the other parents) without having to focus on big impacts? What’s the role of the Government in enabling and fostering this? DO: From Fix my Street to Fix my School. HM, JS: there’s plenty of room for policy making in these issues.


4th Internet, Law and Politics Congress (2008)

4th Internet, Law and Politics Congress (VII). Electoral strategies on the Internet

Notes from the 4th Internet, Law and Politics Congress.
Session VII

Electoral strategies on the Internet

The experience of the 2008 Spanish General Elections.
José Rodríguez and Xavier Peytibí, political experts.

In the Spanish general elections (March 9th, 2008), the web has had more importance than ever, but it still far from being a mainstream communication media.

Main changes

  • Interactivity between the party and the citizenry, with an increase on blogs and nanoblogs (e.g. twitter) resulting in an increase of the reach of the political message.
  • New methods to outsource participation: not only members of the party and campaign volunteers, but also occasional supporters: from outsourcing to crowdsourcing. This has meant more reach and at a much lesser cost.
  • Change of formats: everything reusable and by anyone, being embedding the main practice.
  • Social Networking Sites: enable or ease that people that think alike support each other. Facebook arguably the star.
  • i-Campaigning: personal campaigning. With any kind of multimedia material, anyone can create their own campaign.

The blogosphere of a party is not really their blogosphere, controlled by the powers of the party, but a blurry cloud of people gathering around similar ideas/ideologies. This has been really significative in the case of the party in the opposition in Spain (the Popular Party, PP) after their defeat in 2004. This made of that blogosphere a strong and organized voice that faced the 2008 elections with a lot of strength. But, after the second defeat in 2008, this blogosphere in part split in several pieces and in part turned against its “own” party. So: the blogosphere is neither controlled, nor predictable.

An important thing to state about political blogospheres is that they are loudspeakers of the dissensions and problems that take place inside the party.

In the socialist party, the blogosphere as indeed succeeded in creating — not yet in having it accepted — amendment to the status of virtual volunteers. While the party wanted to treat them as a separate thing to the core of the party, them virtual volunteers and supporters want a status alike any other volunteer or supporter, with they right to vote and have delegates.

José Rodríguez, Albert Padró-Solanet, Xavier Peytibí
José Rodríguez, Albert Padró-Solanet, Xavier Peytibí

Presentation of the results from the Parties and ICT research project.
Albert Padró-Solanet, Professor of Political Science, UOC, and member of the GADE-IN3 research group. Comments and moderator: Rosa Borge, Professor of Political Science, UOC.

Research goals: why ICTs are so notorious in recent political campaigns? Is it due to sort of a cyberoptimism?

The intensive use in the US of Web 2.0 applications, the reporting on the TV of the performance of politics 2.0, and the self-perception of the political e-leaders themselves that the web rules have undoubtedly boosted the notoriety of Politics 2.0.

Opportunities: additional media, almost costless, enormous potential of reach, segmentation, quick response, links with individuals and groups that think alike and endorse their discourse, bigger support, can better control the diffusion of the information (as they cannot directly control mass media), potentially interactive.

Risks: cost of having information up-to-date, ambiguity is avoided and thus debate is not fostered, in the long run the control over the message is absolutely lost.

The research model tries to explain the web behaviour of the political party according to several independent variables:

  • Ideology: left-right, nationalism (Spanish-Catalan)
  • Organization: kind of party (catch-all, masses), centralization (centralized-decentralized), internal conflict visible (y/n)
  • Electoral market: government-opposition, regional-state wide, size (big-small), coalition (y/n)

The dependent variables are the ones by Gibson & Ward (2001) that measure the degree of development of a party’s website:

  • Informing
  • Campaigning
  • Participation
  • Fundraising
  • Networking


  • There’s an evident strategic use of the Web for political issues: no hype, no “because it’s cool” factor
  • Leadership, big size, in the political movement implies (pressure to achieve) leadership in the Internet
  • Smaller size requires more participation, to have more members and raise more funding
  • Mass parties reproduce offline structures to the online landscape
  • There is some rivalry between offline and online participation
  • Batlle, A., Borge, R., Cardenal, A. S. & Padró-Solanet, A. (2007). Reconsidering the analysis of the uses of ICTs by political parties: an application to the Catalan case. Communication presented at the 4th ECPR General Conference. Pisa: ECPR.


Me: what’s the weight of the budget in Web 2.0 campaigning? JR & XP: It is important to kick off the campaign, but the sustainability in the long run and its growth it’s directly related to the ability to engage volunteers. Actually, Obama raises a lot of money on the web, i.e. it’s more an investment than a cost.

Helen Margets: is it the website a dependent variable or an independent one? Ever done the analysis the other way round? AP-S: There is a strong correlation between the structure of the party and the use of the web, so it makes sense thinking of it the other way round, but there’s no analysis yet with this approach.

An attendee: so, the way people participate has really changed? XP: Yes, it has. The possibility that supporters can rip-mix-burn the campaign materials is a crucial change in the whole concept of campaigning. JR: Indeed, an elite of high-class (intellectuals, scholars, etc.) supporters are subverting the whole system of the political party, implying that the basis of the party are left aside in benefit of latecomers that have high e-media impact. Thus, more people taking part into the internal debate of a specific party can indeed imply less internal democracy, as the structures are overridden by the high-class digerati elite latecomers.

Marc López: What’s the role of cybersupporters, to help diffuse the discourse of the powers of the party, or to debate them? Who are the cyberpartisans? JR: Dissension is tolerated while constructive, but if it turns to be destructive, bloggers become a problem. XP: We don’t know who the partisans are, but we do know that cyberpartisans and cybersupporters and birds of a different feather. XP-S: there’s another issue that makes it difficult to know who the cybersupporters are and it’s privacy.


4th Internet, Law and Politics Congress (2008)