Category: Digital Copyright Wars

The Open Rights Group has analyzed the EU Commission's Impact Assessment on the Legal and Economic Situation of Performers and Record Producers in the European Union report and found that only music companies and a small number of performers will benefit significantly from a proposed copyright term extension.

Here's an excerpt from "As Little as 50¢ a Year from Increased Term of Copyright."

Our submission shows that for the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as "much" as £26.79 each year. That’s because most of the gains (89.5%) will go to the top 20% of recording artists. Meanwhile the major labels will be dividing up millions in extra handouts every year.

Read more about it at "80% of Artists Would Get ‹£30/year from Copyright Extension."

The Copyright Clearance Center now offers blanket copyright licenses to large institutions. The University of Texas at Austin has signed up.

Read more about it at: "Copyright Clearance Center Expands Blanket Pricing Offer," "University of Texas at Austin Adopts CCC's Annual Copyright License," and "UT Austin and the CCC's Annual Subscription License."

The Association of Research Libraries reports in the latest E-News for ARL Directors that the Shawn Bentley Orphan Works Act of 2008 (S. 2913) has stalled in the Senate over state sovereign immunity and qualifying searches issues. It is uncertain if the bill will be considered further in this session.

Read more about it at "Orphan Works Legislation Fails to Move Forward in US."

United States District Judge Jeremy Fogel has refused to dismiss Stephanie Lenz's EFF-backed lawsuit against Universal Music Publishing Group that "asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video." Universal had issued a takedown notice to YouTube for Lenz's brief video of her young son dancing to Prince's "Let's Go Crazy." The Judge ruled that fair use must be taken into account before takedown notices are issued by copyright holders.

Here's an excerpt from the ruling:

Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that "the fair use of a copyrighted work . . . is not an infringement of copyright." 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the "provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse." Sen. Rep. No. 105-190 at 21 (1998).

Universal suggests that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices. Universal also points out that the question of whether a particular use of copyrighted material constitutes fair use is a fact-intensive inquiry, and that it is difficult for copyright owners to predict whether a court eventually may rule in their favor. However, while these concerns are understandable, their actual impact likely is overstated. Although there may be cases in which such considerations will arise, there are likely to be few in which a copyright owner's determination that a particular use is not fair use will meet the requisite standard of subjective bad faith required to prevail in an action for misrepresentation under 17 U.S.C. § 512(f).

Read more about it at "Fair Use Gets a Fair Shake: YouTube Tot to Get Day in Court," "Judge Rules That Content Owners Must Consider Fair Use before Sending Takedowns," "More (and More) Good News for Fair Use," and "Woman Can Sue over YouTube Clip De-Posting."

With royalty fees eating up as much as 70% of projected revenue, major Internet radio station Pandora is facing serious financial difficulties, and this does not bode well for Internet radio stations in general, which have to pay higher fees than traditional radio stations.

Read more about it at "Giant of Internet Radio Nears Its 'Last Stand'," "Music Biz *Still* Trying to Kill Web Radio," "Pandora Could Be First Major Casualty of New Royalty Rates," and "Pandora: On the Brink of Closing Down."

The American Council on Education, the Association of American Universities, EDUCAUSE, and the National Association of State Universities and Land-Grant Colleges have issued a memo to campus Chief Information Officers about the Higher Education Opportunity Act's provisions related to illegal file sharing.

The UK Intellectual Property Office has released Taking Forward the Gowers Review of Intellectual Property: Penalties for Copyright Infringement.

Here's an excerpt from the announcement:

Currently the maximum fine that Magistrates' Courts can award for online copyright infringement is £5,000.

To reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000. . . .

Scotland does not have Magistrates’ Courts; therefore the consultation considers introducing maximum levels of fines for Scottish summary courts that deal with equivalent cases in Scotland.

The Enforcement of Intellectual Property Rights Act of 2008 (S.3325) has been introduced in the Senate by Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.).

Here's an excerpt from Public Knowledge's statement about the bill:

The provisions allowing seizure of equipment may be harmful to consumers. Seizing expensive manufacturing equipment used for large-scale infringement from a commercial pirate may be appropriate. Seizing a family's general-purpose computer in a download case, as this bill would allow, is not appropriate. This bill goes even farther, expanding the penalties under the flawed Digital Millennium Copyright Act (DMCA) to create new grounds for allowing a family's computer to be seized if used to circumvent digital rights management, even if for fair uses.

In addition, this bill would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing DoJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill.

The European Commission has proposed a 95-year copyright term for recorded performances. It has also issued Green Paper: Copyright in the Knowledge Economy.

Here's an excerpt from the press release:

Term of protection. . . .

The extended term would benefit performers who could continue earning money over an additional period. A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They will continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances.

The extended term would also benefit the record producers. It would generate additional revenue from the sale of records in shops and on the Internet. This should allow producers to adapt to the rapidly changing business environment which is characterised by a fast decline in physical sales (- 30% over the past five yeas) and the comparatively slow growth of online sales revenue.

In addition, when it concerns a musical composition, which contains the contributions of several authors, the Commission proposes a uniform way of calculating the term of protection. . . .

Green Paper on Copyright in the Knowledge Economy. . . .

With this Green Paper, the Commission plans to have a structured debate on the long-term future of copyright policy in the knowledge intensive areas. In particular, the Green Paper is an attempt to structure the copyright debate as it relates to scientific publishing, the digital preservation of Europe's cultural heritage, orphan works, consumer access to protected works and the special needs for the disabled to participate in the information society. The Green Paper points to future challenges in the fields of scientific and scholarly publishing, search engines and special derogations for libraries, researchers and disabled people.

The Green paper focuses not only on the dissemination of knowledge for research, science and education but also on the current legal framework in the area of copyright and the possibilities it can currently offer to a variety of users (social institutions, museums, search engines, disabled people, teaching establishments).

KEI has leaked the RIAA's suggestions for regulations to be included in the Anti-Counterfeiting Trade Agreement, such as the use of Internet filtering to stop infringement and the termination of ISP service to repeat infringers. (ACTA is being negotiated in secret.)

Read more about it at "Proposed Secret Copyright Deal Takes Aim at iPods, Providers," "Secret Super-Copyright Treaty MEMO Leaked," and "RIAA's ACTA Wishlist Includes Gutted DMCA, Mandatory Filters."

"Copyright Developments: New Zealand" provides a brief summary of the key features of New Zealand's Copyright (New Technologies) Amendment Bill, which received Royal assent on 4/11/08.

The Associated Press has established a fee schedule for the use of excerpts from its articles by bloggers and others. There are different fees for standard, educational, and nonprofit use, but all fees are based on word counts. For example, the free for nonprofit use of 5-25 words is $7.50.

In "Associated Press Declares War on Bloggers, Fair Use," Public Knowledge blogger Mehan Jayasuriya says:

That’s right, if you want to quote an AP article in your blog post, you’ll be paying by the word for the privilege. What’s more, in order to purchase a license to quote AP content, you’ll have to agree to a Terms of Use agreement, which states, among other things, that you may not criticize either the AP or the author of the article in your post or article. If you do, the AP reserves the right to revoke the license granted.

The problem with the AP’s licensing structure is that it ignores existing fair use rights, which clearly state that a short quotation from any news story is fair game. . . .

Blogger Michelle Malkin decided to calculate, using the AP’s licensing structure, how much the AP owes her for quotations it has used from her blog posts in recent months (it’s also worth noting that the AP did not link to her blog in the articles where these quotes were used). By Malkin’s count, the AP owes her somewhere in the neighborhood of $132,125.

After a firestorm of criticism, the Associated Press has issued a press release saying that its dispute with the Drudge Retort over that blog's use of short quotes from AP stories is over: "Both parties consider the matter closed."

Read more about the controversy at "AP Battles Blogs"; "AP, Bloggers Clash over Wire Content Use"; "AP Exaggerates the 'Conversation' It's Having with Bloggers; Caught Copying Text from Bloggers as Well"; "The A.P. Has Violated My Copyright, and I Demand Justice"; "The Associated Press Plays Role of Metallica in Napster-esque War with Bloggers"; and "Biting the Hand that Feeds (Traffic to) Them."

The Associated Press has sent the Drudge Retort a DMCA take-down letter demanding that 6 posts and one comment with short quotes from AP articles be removed from the site.

Negative reaction from bloggers and others against what was viewed as an assault on fair use was swift, resulting in a TechCrunch ban on AP story use, a broader AP ban by bloggers, and a wave of criticism.

As a result, AP decided to halt further action against other Weblogs until new guidelines could be established, but it has not withdrawn its letter the Drudge Retort.

Read more about it at: "Associated Press Digs Its Own Grave Deeper; Wants to Create Its Own Fair Use Rules," "The Associated Press to Set Guidelines for Using Its Articles in Blogs," "AP Rethinking Policy After Drudge Retort DMCA Takedowns," "AP Takes Action against Community News Website over Copyright Violation," "AP Wants Change in Blog Excerpting, Just Not Sure What," "DMCA Takedown Tiff Not a Battle the AP Should Be Fighting," "Netroots' Bloggers Boycott of Associated Press Is Working," and "Welcome to the Web Refactory, AP."

There have been strong reactions to the "Canadian DMCA" (Bill C-61) by both advocates and opponents. Copyright for Canadians has put up a "Tell MPs What's Wrong with the Prentice Bill" page that helps opponents contact their Members of Parliament.

Here's a selection of articles and posts: "Appropriation Art Condemns Bill C-61," "Bill C-61: First Reactions," "Canadian Creator and Music Industry Groups Applaud Introduction of Copyright Bill," "The Canadian DMCA: A Betrayal," "Canadian Library Association Disappointed with New Copyright Legislation," "CIPPIC Disappointed with New Copyright Bill," "CMCC: Copyright Reform Bill Doesn’t Help Canadian Artists," "Conservatives Deliver Rehearsed Responses on Bill C-61," "Copyright Law Could Result in Police State: Critics," "Copyright Reform a Good First Step," "Industry Group Applauds Bill," "Software Industry Praises Federal Government Plans to Modernize Canadian Copyright Act," and "TPM and Bill C-61."

The Association of Research Libraries has released a useful 10-page summary of current U.S. orphan works legislation, which includes a discussion of public university and state sovereign immunity issues.

The Canadian Industry Minister Jim Prentice has introduced Bill-C61, often called the Canadian "DMCA" by its critics, into the House.

Read more about it at "A Breakdown of the New Digital Dos and Don'ts," "Canadian DRM Bill Creates Partisan Uproar," "'Canadian DMCA' Brings 'Balanced' Copyright to Canada," "The Canadian DMCA: Check the Fine Print," "Copyright Bill: All Ours, or a DMCA Copy?," "David Fewer Of CIPPIC On Canadian DMCA Bombshell" (includes video), "Industry Minister Jim Prentice Introduces The Canadian DMCA" (includes video), "New Copyright Act Targets Online Piracy," and "Ottawa Tables Copyright Bill."

A coalition of consumer advocate organizations has released Canadian Copyright Law: A Consumer White Paper.

Here's an excerpt from the Executive Summary:

Copyright law is designed to balance the interests of creators with the interests of the public. Copyright grants creators exclusive rights in their works as a reward for creativity that also serves as an incentive for the creation of new works. These rights are not absolute, but limited in nature, scope and time. These limits are essential to copyright’s greater design, for it is at the limits of copyright owners’ rights that important consumer interests come into play.

From a consumer’s perspective, copyright’s current balance is far from perfect. In fact, many consumer dealings with copyrighted content – ordinary dealings, like copying digital music onto a portable device, or using the digital video recorders sold by cable companies – technically infringe copyright. In these and many other cases, the law is simply out of step with reality. Simple, uncontroversial amendments to the Copyright Act can fix many of these failings.

Unfortunately, copyright policy makers are not focusing on consumer interests. Instead, recent proposals to amend the Copyright Act focus on expanding rights holder’s interests at Canadian consumer’s expense. We call on Canada’s law-makers to accommodate consumer interests in any revision to the Copyright Act currently under consideration. Additionally, we call on lawmakers to revise the Copyright Act to address important consumer concerns that are not yet under consideration at all.

Gordon Duggan has published a heavily linked comic called 51st State about the Canadian copyright reform conflict. All of the text is linked to sources that provide further background.

Australia, Canada, the European Union, Japan, Mexico, New Zealand, South Korea, Switzerland, and the United States have been conducting low-profile meetings about a new trade agreement that would significantly effect copyright laws in the participating countries if passed. It is called the Anti-Counterfeiting Trade Agreement, and a discussion paper was leaked in May. It may include provisions such as ISP disclosure of suspected infringers without a warrant.

Read more about it at "An ACTA Call to Arms: No More Secret Government," "The Art of the End Around," "Secret ACTA Treaty May Include ISP Filtering," "The Real ACTA Threat (It's Not iPod-Scanning Border Guards)," and "Speculation Persists on ACTA as First Official Meeting Concludes."