Archive for the 'Digital Copyright Wars' Category

"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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            "ARL Joins New Re:Create Coalition to Promote Balanced Copyright"

            Posted in ARL Libraries, Copyright, Digital Copyright Wars on April 29th, 2015

            ARL has released "ARL Joins New Re:Create Coalition to Promote Balanced Copyright."

            Here's an excerpt:

            Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

            Re:Create promotes and defends the important balance of copyright. ARL's member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

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              "Steps toward a New GSU Ruling"

              Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing, Research Libraries on April 28th, 2015

              Kevin Smith has published "Steps toward a New GSU Ruling" in Scholarly Communication @ Duke University.

              Here's an excerpt:

              It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage. Now Judge Evans has explicitly told them, in her scheduling order, that what is required is "consideration and reevaluation of each of the individual claims" in order to redetermine "in each instance… whether defendants' use was a fair use under 17 U.S.C. section 107." Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now. Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

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                "New ‘Breaking Down Barriers to Innovation Act’ Targets Many of DMCA Section 1201’s Problems"

                Posted in Copyright, Digital Copyright Wars on April 21st, 2015

                The EFF has released "Breaking Down Barriers to Innovation Act' Targets Many of DMCA Section 1201's Problems" by Mitch Stoltz.

                Here's an excerpt:

                On Thursday, Senator Ron Wyden and Representative Jared Polis introduced a new bill to fix many of the problems that Section 1201 of the Digital Millennium Copyright Act causes for free speech, privacy, security research, and innovation. Called the "Breaking Down Barriers to Innovation Act," the bill would make it a little easier to get three-year exemptions to the DMCA's ban on circumventing digital restrictions. It also expands and clarifies the exemptions for encryption research, security testing, strengthening privacy, and reverse engineering. . . .

                There's another bill that strikes at the root of the problem. Just a few weeks ago, Representative Zoe Lofgren, along with Representatives Massie, Polis, and Eshoo, re-introduced the Unlocking Technology Act. It makes a simple and straightforward change to Section 1201 of the DMCA: circumventing DRM would only be illegal if a person intends to infringe copyright. With that change, extracting video clips from digital media to make fair uses, as well as modifying our own digital devices and making work more accessible would all be free from legal threats under the DMCA.

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                  "The Blurred Lines Copyright Verdict Is Bad News for Music"

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

                  EFF has released "The Blurred Lines Copyright Verdict Is Bad News for Music."

                  Here's an excerpt:

                  Artists evoke elements of common culture all the time, to make their point or simply to entertain by putting their own twist on what has come before. This is what makes culture a conversation and not a series of disjointed soliloquies. Copyright law, though, is dangerously disconnected with the way culture gets made, and as a result it pushes entire genres and communities to the margins, such as those that involve sampling, remix, and other adaptations. A staggering amount of such work is generated noncommercially and available online, but the broad sweep of copyright exclusivity, the risk of disproportionate statutory damages, and the uneven application of the fair use doctrine mean that such authors are typically excluded from commercial opportunities. Far from being incentivized by copyright, such authors typically create in spite of the threats posed by copyright law.

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                    You Didn’t Think It Was Over, Did You? New Motion in GSU Copyright Case

                    Posted in Copyright, Digital Copyright Wars, Publishing, Research Libraries, Scholarly Journals on March 9th, 2015

                    According to "Publishers' Move Could Mean 'Whole New Trial' in GSU Copyright Case," the plaintiffs have filed a motion to "reopen the trial record, and have asked that new evidence be used to determine whether some of the university's online e-reserve course readings are infringing copyright."

                    The article also mentions a recent e-print by Brandon Butler, "Transformative Teaching and Educational Fair Use after Georgia State."

                    Here's an excerpt from the e-print:

                    The latest installment in the history of educational fair use, the 11th Circuit's opinion in the Georgia State e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use (which the court studiously avoids). Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use caselaw, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and therefore entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights, and first amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine.

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                      UK Launches New Licensing Program for 91 Million Orphan Works

                      Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on November 4th, 2014

                      The UK has launched a new licensing program for orphan works that will cover around 91 million works.

                      Here's an excerpt from the announcement:

                      A new licensing scheme launched today (29 October 2014) could give wider access to at least 91 million culturally valuable creative works-including diaries, photographs, oral history recordings and documentary films.

                      These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the Intellectual Property Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward.

                      Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

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                        Fair-Use and E-Reserves: "A Reversal for Georgia State"

                        Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on October 20th, 2014

                        Kevin Smith has published "A Reversal for Georgia State" in Scholarly Communications @ Duke.

                        Here's an excerpt:

                        The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use. The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully. But the hot news right now is that the Court of Appeals has reversed the District Court's judgment and remanded the case back for proceedings consistent with the new opinion. The injunction issued by the District Court and the order awarding costs and attorney's fees to GSU have been vacated.

                        Read more about it at "Publishers Win Reversal of Court Ruling That Favored 'E-Reserves' at Georgia State U." and "A Win for Publishers."

                        Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

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