The Office of the United States Trade Representative has released the text of the Anti-Counterfeiting Trade Agreement (ACTA).

Here's an excerpt from the press release:

After three years, and ten rounds of negotiations, the ACTA parties decided the time was right to conclude their discussions. The United States helped lay the foundation for the progress in Tokyo. It chaired an extra round of negotiations in Washington during August, supported the work of the Government of Japan to organize the final round at the Vice-Ministerial level, and worked hard to establish consensus on the outstanding issues.

Consistent with the Administration's strategy for intellectual property enforcement, the ACTA negotiations aim to establish a state-of-the-art international framework that provides a model for effectively combating global proliferation of commercial-scale counterfeiting and piracy in the 21st century. The agreement will include innovative provisions to deepen international cooperation and to promote strong enforcement practices. These will ultimately help sustain American jobs in innovative and creative industries.

The participants agreed in Tokyo to work expeditiously to resolve the small number of outstanding issues that require further examination in their own countries with a view to finalizing the text of the agreement as promptly as possible. The draft Agreement will undergo final legal review and relevant domestic processes before signature.

The ACTA participants include: Australia, Canada, the European Union (EU) represented by the European Commission and the EU Presidency (Belgium) and the EU Member States, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.

Pamela Samuelson and members of the Copyright Principles Project have released The Copyright Principles Project: Directions for Reform.

Here's an excerpt from the press release:

A group of leading experts on copyright law and policy released a report today that explores ideas for meaningful reforms to the U.S. copyright system. Crafted over three years by a group of legal academics, private practitioners, and corporate attorneys, the report examines several ways to improve and update the law in an era of rapid technological change.

The Copyright Principles Project: Directions for Reform (CPP) report attempts to ignite an informed debate about how to best balance the interests of copyright owners and users. The group reached consensus on a number of significant ideas, as well as guiding principles for copyright reform. The project was led by Berkeley Law distinguished professor Pamela Samuelson.

"The report intelligently informs the copyright debate, and the identification and discussion of issues is well done and important," said Marybeth Peters, the head of the U.S. Copyright Office. "The recommendations are thoughtful, and in many cases, I support them. This entire project significantly reinvigorates efforts to bring the copyright law up-to-date, either incrementally or as a major revision." . . .

One of the project's ideas would provide non-commercial uses of copyrighted works better shelter from liability, particularly as users lift parts of existing works to create new ones. The report also suggests a more efficient and technologically-driven approach to copyright registration, so that works can be freely reused if their authors agree.

Copyright law reform has been a challenging issue for stakeholders, many of whom have starkly different ideas about how to balance public and private interests. To its credit, the project team explored controversial subjects openly and with vigorous debate. In cases where the participants could not settle on a specific reform proposal, they were able to draft guiding principles for future reform efforts. . . .

One common problem the report addresses is peer-to-peer file-sharing of commercial movies and music. Although some file-sharing services have been shut down, the illegal practice has not abated. The report suggests the creation of a "safe harbor" to protect online service providers from excessive damage claims if they take reasonable, voluntary, measures to limit file-sharing—or other unlawful distributions of commercial works. Companies that comply would be shielded from liability for user infringements.

The report also suggests development of reasonable and consistent statutory guidelines for damage awards. Current law allows courts to award between $750 and $30,000 in damages per infringed work—and up to $150,000 per work if the infringement is willful. This has led to awards that seem arbitrary and capricious, inconsistent with awards in similar cases, and grossly excessive or disproportionate.

Other ideas include:

Modernize the Copyright Office: Instead of one registry for all copyrighted works, the office could certify third-party registries for different types of works, such as photos, films, and computer programs. The model is akin to the domain name registration system. Other suggestions include adopting a small claims procedure for small-scale disputes.

Reinvigorate copyright registration: Encourage copyright owners to register so that it's simple to find out who owns what. The idea is to make registration easy and worthwhile for copyright owners so that the public can have better information about protected works and their owners.

Refine exclusive rights for authors: Weigh commercial value and risk of harm to copyright markets when determining whether someone's exclusive right has been infringed; this shields non-harmful activity from the threat of highly punitive copyright claims.

Revise the common practice of automatic injunctions: Courts could consider whether a preliminary or permanent injunction is needed to prevent irreparable harm, as well as whether having access to the work is in the public’s best interest.

Limit Orphan Works liability: Enable libraries and others to preserve a part of our cultural heritage by using copyrighted materials whose owners cannot readily be found.

U.S. District Judge Orinda Evans has issued a ruling about the defendants' and plaintiffs' motions for summary judgment in the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt:

Overall, the evidence presented does not indicate that Defendants "profited directly from" or "had a direct financial interest in" the infringement alleged by Plaintiffs. There is absolutely no evidence in the record showing that Georgia State benefitted financially from the alleged infringements. At most, if the Court takes the inferential steps suggested by Plaintiffs, any benefit the infringement provides to students constitutes "just an added benefit" rather than a clear "draw" to Georgia State. Therefore, the Court GRANTS Defendants' Motion for Summary Judgment as to the third claim, vicarious copyright infringement and DENIES Plaintiffs' Motion for Summary Judgment as to the third claim. . . .

The record before the Court on the motions for summary judgment does not speak to the question of whether in practice the Current Policy is encouraging improper application of the fair use defense. The Court therefore DENIES both Defendants' and Plaintiffs' motions for summary judgment as to the contributory infringement claim. . . .

Going forward, in order to show that Defendants are responsible for the copyright infringements alleged in this case, Plaintiffs must show that the 2009 Copyright Policy resulted in ongoing and continuous misuse of the fair use defense. To do so, Plaintiffs must put forth evidence of a sufficient number of instances of infringement of Plaintiffs' copyrights to show such ongoing and continuous misuse. Defendants will have the burden of showing that each specified instance of 2009 Copyright Policy infringement was a fair use. Both sides will be limited to the list of claimed infringements produced in response to the Court's August 11, 2010 and August 12, 2010 orders. The parties are DIRECTED to confer and determine whether further discovery is needed before resolving the remaining contributory infringement claim. Within twenty (20) days, the parties shall present a proposed scheduling order.

Read more about it at "Going Forward with Georgia State Lawsuit."

Pamela Samuelson has self-archived "The Google Book Settlement as Copyright Reform" in SSRN.

Here's an excerpt:

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

Aaron Perzanowski and Jason Schultz have self-archived "Digital Exhaustion" in SSRN.

Here's an excerpt:

As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights.

Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.

Peter S. Menell has self-archived "In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age" in SSRN.

Here's an excerpt:

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term "distribute" in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to "publish" and "vend" within the right to distribute, and rejects the position that Congress required proof of "actual distribution" to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

A ruling from the United States Court of Appeals for the Ninth Circuit in the Vernor v. Autodesk case has put into question the right to resell software.

Here's an excerpt from Sherwin Siy's "Software Companies Own Your Hard Drive: Ninth Circuit Rules for Formality Over Function":

In Vernor v. Autodesk, the appeals court held that Autodesk could stop Vernor from selling copies of their software on eBay by claiming that those resales were an infringement of its copyrights. Ordinarily, a copyright holder can't prevent someone from selling or otherwise distributing a lawfully made copy of the work, so long as that person owns the copy. Here, Autodesk argued that Vernor never owned the copies (which he bought used from a design firm) because Autodesk included in its sale to that firm a standardized agreement that said that the firm was only "licensing" the disks. . . .

So what does this decision mean? Unchecked, it won't soon lead to a world where I can't donate my old T-shirts to Goodwill, or where PK can start raking in that sweet, sweet statutory damages cash. Those might be theoretical possibilities, but the first effects will likely be something we've already been seeing creeping at the margins. Say goodbye to used software and used games, for instance. That PC version of Bioshock 4 you might buy a few years from now? Don't expect to be able to sell it once you're done with it. Don't even expect to be able to give it away. Game rental services could get litigated out of existence. And while licensing clothing might be beyond the pale, it's not too hard to see the software model being applied to increasingly sold-by-the-bit media like movies and music. All because of fine print, which might be clear and convenient for a court, even if it's exactly the opposite for a consumer.

Consumers International has released Access to Knowledge: A Guide for Everyone.

Here's an excerpt:

Access to knowledge (A2K) is the umbrella term for a movement that aims to create more equitable public access to the products of human culture and learning.

Fields of advocacy that it subsumes include most centrally copyright and patent law reform, open access, open data and open standards, but also access to public information, broader communications rights such as freedom of expression, and issues around ownership of and participation in public media.

Matthew Sag has self-archived "The Pre-History of Fair Use" in SSRN.

Here's an excerpt:

This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume—the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this "pre-history" of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.

The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. . . . It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake.

Rep. Todd Platts has introduced H.R. 5704 in the House, which would "allow faculty members at Department of Defense service academies and schools of professional military education to secure copyrights for certain scholarly works that they produce as part of their official duties in order to submit such works for publication, and for other purposes." Such works are currently in the public domain.

Read more about it at "Bill Would Curb Access to Government Works."

The Library Copyright Alliance, EFF, and others have filed amicus curiae briefs in Costco v. Omega, an important first sale doctrine case before the Supreme Court. The first sale doctrine is used to support libraries legal right to lend books and other materials.

Here's an excerpt from the Library Copyright Alliance brief:

By restricting the application of Section 109(a) to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of Section 109(a) only by bearing the significant cost of obtaining a "lending license" whenever they acquired a copy that was not clearly manufactured in the United States.

Read more about it at "Supreme Court Should Uphold the First Sale Doctrine."

The European Commission has released Assessment of the Orphan Works Issue and Costs for Rights Clearance.

Here's an excerpt:

Orphan works form a significant part of any digitisation project and the survey shows high percentages of orphan works for almost all categories of works, especially among photographs, and audiovisual materials.

• A conservative estimate of the number of orphan books as a percentage of in copyright books across Europe puts the number at 3 million orphan books (13 % of the total number of in-copyright books). The older the books the higher the percentage of orphan works.
• When handling requests for using older film material, film archives from across Europe categorized after a search for right holders 129,000 film works as orphan which could therefore not be used. Works that can be presumed to be orphan without actually searching for the right holders augments the figure to approximately 225 000 film works.
• A digitisation project in the UK found that 95 % of newspapers from before 1912 are orphan. Also, a survey amongst museums in the UK found that the rights holders of 17 million photographs (that is 90% of the total collections of photographs of the museums) could not be traced.