Archive for the 'Digital Copyright Wars' Category

White Paper on Remixes, First Sale, and Statutory Damages

Posted in Copyright, Digital Copyright Wars, Reports and White Papers on February 1st, 2016

The Department Of Commerce Internet Policy Task Force has released White Paper on Remixes, First Sale, and Statutory Damages.

Here's an excerpt:

The U.S. Department of Commerce has played a key role in addressing Internet policy-related issues since it launched the Internet Policy Task Force in April 2010. Two years ago, the Task Force published a Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy—the most comprehensive assessment of digital copyright policy issued by any Administration since 1995. The review process that culminated in this White Paper serves as a testament to the importance the Administration has placed on the development of updated and balanced copyright law in the digital environment.

Read more about it at "The Commerce Department Has Good Recommendations for Fixing Copyright Law —But More Is Needed."

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    "Fair Use in the Digital Age: Reflections on the Fair Use Doctrine in Copyright Law"

    Posted in Copyright, Digital Copyright Wars, Google and Other Search Engines on November 16th, 2015

    The Program on Information Justice and Intellectual Property at the American University Washington College of Law has released a digital video of Judge Pierre N. Leval's "Fair Use in the Digital Age: Reflections on the Fair Use Doctrine in Copyright Law" lecture.

    Here's an excerpt from the announcement:

    At the Fourth Annual Peter A. Jaszi Distinguished Lecture in Intellectual Property, Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit will present a lecture on the role of the fair use doctrine within the structure of copyright law. Judge Leval is responsible for introducing the concept of transformative use to United States fair use jurisprudence and will discuss the development of the doctrine to date. He is the author of the court's opinion in Authors Guild Inc., et al. v. Google, Inc. (October 16, 2015) in which the court held that Google's digitization of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. Judge Leval also authored Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990).

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      "Trade Officials Announce Conclusion of TPP—Now the Real Fight Begins"

      Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on October 6th, 2015

      The EFF has released "Trade Officials Announce Conclusion of TPP—Now the Real Fight Begins" by Maira Sutton.

      Here's an excerpt:

      Trade officials have announced today that they have reached a final deal on the Trans-Pacific Partnership (TPP). Their announcement came after a drawn out round of negotiation in Atlanta, Georgia, which was mainly held up around disagreements over medicine patent rules and tariffs over autos and dairy.

      We have no reason to believe that the TPP has improved much at all from the last leaked version released in August, and we won't know until the U.S. Trade Representative releases the text. So as long as it contains a retroactive 20-year copyright term extension, bans on circumventing DRM, massively disproportionate punishments for copyright infringement, and rules that criminalize investigative journalists and whistleblowers, we have to do everything we can to stop this agreement from getting signed, ratified, and put into force.

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        "Help the Copyright Office Understand How to Address Mass Digitization"

        Posted in Copyright, Digital Copyright Wars, Mass Digitizaton on September 28th, 2015

        The DPLA has published "Help the Copyright Office Understand How to Address Mass Digitization" in the DPLA Blog.

        Here's an excerpt:

        The U.S. Copyright Office recently issued a report and a request for comments on its proposal for a new licensing system intended to overcome copyright obstacles to mass digitization. While the goal is laudable, the Office's proposal is troubling and vague in key respects.

        The overarching problem is that the Office's proposal doesn't fully consider how libraries and archives currently go about digitization projects, and so it misidentifies how the law should be improved to allow for better digital access. It's important that libraries and archives submit comments to help the Office better understand how to make recommendations for improvements.

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          "Important Win for Fair Use in ‘Dancing Baby’ Lawsuit"

          Posted in Copyright, Digital Copyright Wars on September 16th, 2015

          The EFF has released "Important Win for Fair Use in 'Dancing Baby' Lawsuit."

          Here's an excerpt:

          The Electronic Frontier Foundation (EFF) represents Stephanie Lenz, who-back in 2007-posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song "Let's Go Crazy" was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince's song. EFF sued Universal on Lenz's behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.

          Today [September 14, 2015], the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss.

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            Copyright Reform for a Digital Economy

            Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Reports and White Papers on August 27th, 2015

            The Computer & Communications Industry Association, has released Copyright Reform for a Digital Economy.

            Here's an excerpt:

            Congress can accommodate new technology innovation by:

            (a) ensuring that fair use, which is integral to the fabric of the Copyright Act, remains a central consideration in any legislative effort;

            (b) preserving the first sale doctrine to ensure that contractual restrictions do not limit the free movement of goods in the economy as more products increasingly incorporate digital components; and

            (c) reforming the licensing landscape to ensure greater transparency as to copyright ownership and to better police against anticompetitive conduct, particularly where rights ownership is highly concentrated, and reforming Copyright Office functions to improve the quality and public availability of data about copyrighted works.

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              "TPP Undermines User Control and That’s Disastrous for Accessibility"

              Posted in Copyright, Digital Copyright Wars on July 28th, 2015

              Maira Sutton has published "TPP Undermines User Control and That's Disastrous for Accessibility" in Deeplinks.

              Here's an excerpt:

              The passage of the Marrakesh Treaty led to a change in the TPP's Limitations and Exceptions section of the Intellectual Property chapter, expanding the definition of a legitimate use as one that is "facilitating access to works for persons who are blind, visually impaired, or otherwise print disabled" (some of this wording is still contested, but on the whole is included in the most recent leak of the agreement). This was of course a welcome change to see in the TPP.

              What's worrying however, is that in order to pass a new international exception for other kinds of disabilities, such as for the deaf, it will require another agonizing, years-long process. While Marrakesh was intended to set a lower limit on the number of potential exceptions for accessibility, the wording of trade agreements like the TPP could turn the same language into an upper limit. This is due to its approach to copyright exceptions, exemplified by its "three-step test" provision. It's a set of criteria that governments must follow in order to pass any new exception (like say, allowing works to be used for educational or even accessibility purposes). In practice, the three-step test can embolden restrictions against using copyrighted works, rather than being more permissive like fair use.

              So instead of providing only a narrow right to people with visual impairments, the TPP could include an exception that would help anyone who has difficulty accessing work due to a disability. But unlike at Marrakesh there are no representatives of the disabled to make that argument in the closed negotiating rooms of the TPP.

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                "Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation"

                Posted in Copyright, Digital Copyright Wars on May 20th, 2015

                Jacqueline D. Lipton and John Tehranian have published "Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation" in the Northwestern University Law Review.

                Here's an excerpt:

                As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (1) reworking the strict liability basis of copyright infringement for noncommercial works, (2) tempering damages awards for noncommercial or innocent infringement, (3) creating an "intermediate liability" regime that gives courts a middle ground between infringement and fair use, (4) developing clearer ex ante guidelines for fair use, and (5) reworking the statutory definition of "derivative work" to exclude noncommercial remixing activities.

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                  Written Testimony of Maria A. Pallante, US Register of Copyrights and Director of the U.S. Copyright Office

                  Posted in Copyright, Digital Copyright Wars on May 8th, 2015

                  The House Judiciary Committee has released the 4/29/15 written testimony of Maria A. Pallante, United States Register of Copyrights and Director of the U.S. Copyright Office.

                  Here's an excerpt:

                  Related to the problem of orphan works, the Office is completing its analysis of copyright issues inherent to mass digitization projects. In our study, witnesses have described some of the difficulties presented by mass digitization projects under current copyright law, and proposed specific statutory solutions.

                  As hearing testimony indicated, the problem with respect to mass digitization is not so much a lack of information as a lack of efficiency in the licensing marketplace. For a digitization project involving hundreds, thousands, or millions of copyrighted works, the costs of securing ex ante permissions from every rightsholder individually often will exceed the value of the use to the user. Thus, even where a library or other repository agrees that a use requires permission and would be willing to pay for a license (e.g., to offer online access to a particular collection of copyrighted works), the burdens of rights clearance may effectively prevent it from doing so. To the extent that providing such access could serve valuable informational or educational purposes, this outcome is difficult to reconcile with the public interest.

                  While fair use may provide some support for limited mass digitization projects—up to a point—the complexity of the issue and the variety of factual circumstances that may arise compel a legislative solution. In the Office's view, the legitimate goals of mass digitization cannot be accomplished or reconciled under existing law other than in extremely narrow circumstances. For example, access to copyrighted works, something many view as a fundamental benefit of such projects, will likely be extremely circumscribed or wholly unavailable. For this reason, as part of its orphan works and mass digitization report, the Office will recommend a voluntary "pilot program" in the form of extended collective licensing ("ECL") that would enable full-text access to certain works for research and education purposes under a specific framework set forth by the Copyright Office, with further conditions to be developed through additional stakeholder dialogue and discussion. Such input is critical, we believe, because ECL is a market-based system intended to facilitate licensing negotiations between prospective users and collective management organizations representing copyright owners. Thus, the success of such a system depends on the voluntary participation of stakeholders.

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                    ARL Signs The Hague Declaration on Knowledge Discovery in the Digital Age

                    Posted in ARL Libraries, Copyright, Digital Copyright Wars, Research Libraries on May 7th, 2015

                    ARL has signed The Hague Declaration on Knowledge Discovery in the Digital Age.

                    Here's an excerpt from the announcement:

                    More than 50 organizations around the world—including ARL—have signed the Hague Declaration on Knowledge Discovery in the Digital Age, which calls for immediate changes to intellectual property (IP) law and the removal of other barriers preventing widened and more equal access to data. . . .

                    The declaration asserts that copyright was never designed to regulate the sharing of facts, data, and ideas—nor should it. The right to receive and impart information and ideas is guaranteed by the Universal Declaration of Human Rights but the modern application of IP law often limits this right, even when these most simple building blocks of knowledge are used.

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                      USTR Releases 2015 Special 301 Report on Intellectual Property Rights

                      Posted in Copyright, Digital Copyright Wars on May 1st, 2015

                      The Office of the United States Trade Representative (USTR) has released its 2015 Special 301 Report.

                      Here's an excerpt from the announcement:

                      The "Special 301" Report is an annual review of the global state of IPR protection and enforcement. USTR conducts this review pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act.

                      USTR reviewed seventy-two (72) trading partners for this year's Special 301 Report, and placed thirty-seven (37) of them on the Priority Watch List or Watch List.

                      In this year's Report, trading partners on the Priority Watch List present the most significant concerns this year regarding insufficient IPR protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection. Thirteen countries—Algeria, Argentina, Chile, China, Ecuador, India, Indonesia, Kuwait, Pakistan, Russia, Thailand, Ukraine, and Venezuela—are on the Priority Watch List. These countries will be the subject of particularly intense bilateral engagement during the coming year.

                      See also “Error: Copyright Balance Not Found in United States’ Special 301 Report” from the EFF.

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                        "Aaron’s Law Reintroduced: CFAA Didn’t Fix Itself"

                        Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on April 30th, 2015

                        The EFF has released Aaron's Law Reintroduced: CFAA Didn't Fix Itself by Cindy Cohn.

                        Here's an excerpt:

                        Aaron's law, the proposed law named in honor of Internet hero Aaron Swartz was reintroduced last week by Rep. Zoe Lofgren (D-Calif.) and Senator Wyden (D-Ore.), with new co-sponsor Senator Rand Paul (R-Ky.). This bill is the same as the one introduced in 2013 and we call upon Congress to move it forward.

                        The CFAA is one of the laws that is misused by prosecutors, piling on potential jail time to relatively minor charges in order to ratchet up pressure on defendants and get them to plead guilty rather than risk trial. In the time since Aaron's tragic death, EFF has continued to see misuses of the CFAA in prosecutions across the country. While this bill wouldn't fix everything that is wrong with the law, it would ensure that people won't face criminal liability for violating a terms of service agreement or other solely contractual agreements. It would also rein in some of the potential for prosecutorial discretion by limiting penalties and stop some of the game playing with duplicate charges that we continue to see. More specifics on our website, along with links to EFF's ongoing work in the courts can be found on our CFAA Issue page.

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