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 Senate passed the Higher Education Opportunity Act, which includes provisions that require higher education institutions to take steps to curb illegal file sharing. The bill now goes to President Bush for signature.

Read more about it at "College Funding Bill Passed with Anti-P2P Provisions Intact" and "Mixed Reviews for Illegal File-Sharing on Campus."

The House passed the Higher Education Opportunity Act, which includes provisions that require higher education institutions to take steps to curb illegal file sharing.

On July 30, 2008, EDUCAUSE issued a letter about the revised copyright provisions of the bill.

Here's an excerpt from that letter:

Section 493 (also below) is the result of much tug-and-pull over the last few months. In the end, it will require every college and university to certify that it "(A) has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents; and (B) will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution."

The language of (A) represents a weaker requirement on colleges than had been discussed in some previous proposals. In particular, the Report language makes clear (see below) that technological deterrents "include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and a variety of commercial products designed to reduce or block illegal file sharing." Further, the Report states that the bill is to be considered technology neutral. It should be up to the institution to determine its policy and corresponding technology, which can include policies that prohibit the monitoring of content.

The language of (B) is stronger than in the previous version, in that it requires that institutions certify that they "will . . . offer alternatives" instead of simply requiring plans for them. There is considerable flexibility, however, in that the institutions must interpret the "to the extent practicable" qualifier in the context of their own situation. Moreover, access to legal alternative services may be accomplished in a growing number of ways, including institutionally provided on-campus services, providing links to a variety of commercial services, and other procedures, as indicated in the Report language. "The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section."

Read more about it at "Congress Tackles the Higher Ed Act" and "EDUCAUSE Comments on the File Sharing Provisions in the HEA."

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 UK's six largest ISPs and the British Phonographic Industry (BPI) have signed a Memorandum of Understanding about restraining illegal file sharing.

Here's an excerpt from the BPI press release:

UK record labels' association BPI today reached a groundbreaking agreement with major internet service providers (ISPs) and government on measures to help significantly reduce illegal filesharing.

Following negotiations facilitated by the Department for Business, Enterprise and Regulatory Reform (BERR), BPI on behalf of hundreds of UK record companies big and small has signed a Memorandum of Understanding (MOU), with the UK's six largest internet service providers. The Motion Pictures Association of America and BERR have also signed.

The MOU places joint commitments on the signatories to continue developing consumer education programmes and legal online services. Most importantly, for the first time ISPs will be required to work with music and other rightsholders towards a "significant reduction" in illegal filesharing.

To achieve this, in the first year hundreds of thousands of informative letters will be sent by participating ISPs to customers whose accounts have been identified by BPI as being used illegally. In addition, under the auspices of Ofcom, the signatories will work together to identify effective mechanisms to deal with repeat offenders.

Alongside the MOU, BERR has today published a consultation on proposed new legislation requiring ISPs to deal effectively with illegal filesharing. It is anticipated that the outcome of this consultation will provide a co-regulatory backdrop to the MOU.

Read more about it at: "ISPs to Send 'Hundreds of Thousands' of File-Sharing Warnings"; "ISPs Yet to Decide on File-Sharer Punishment"; "Online Crackdown: What You Need to Know"; "'This Is Not Three Strikes and You're Out. It Is a Letter'"; and "Transcript from BPI Call with Journalists This Morning."

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).

Georgia State University's filing in copyright infringement suit the e-reserves copyright infringement suit brought against key GSU officials by three publishers is now available. It presents eighteen defenses, including sovereign immunity and fair use.

Read more about it at "Georgia State University Strongly Answers Publishers’ E-Reserve Lawsuit."