Archive for the 'Digital Copyright Wars' Category

"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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"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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