ALA has issued an urgent call to action about the Shawn Bentley Orphan Works Act of 2008. See ARL's "Orphan Works Legislation" briefing for background information.
You can contact your Congressional representatives to support the bill using ALA's Take Action page for the bill. (In Firefox, quotes do not appear properly in the prepared message. Replace diamonds with a question mark with straight quotes.)
The U.S. Departments of Commerce and Justice have sent a joint letter to Patrick Leahy, Chairman of the Senate Committee on the Judiciary, opposing Title I of the "Enforcement of Intellectual Property Rights Act."
Here's an excerpt:
We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure "restitution" damages and remit them to the private owners of infringed copyrights. First, civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and U.S. law already provides them with effective legal tools to protect their rights. . . .
Second, Title 1's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. . . .
Third, the Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the Department of Justice may bring.
Read more about it at "DoJ Agrees: IP Enforcement Bill is a Bad Idea" and "DoJ to Senate: Don't Make Us Be Big Content's Copyright Cops."
United States District Court Judge Michael Davis has ruled in the widely publicized Capitol Records v. Jammie Thomas case that merely making a digital work available is not enough to constitute infringement, rather the work must be accessed and such access must be proved. Since this was not the instruction given to the jury, Thomas has been granted a new trial.
The judge also commented on the disproportionate size of the awarded damages ($222,000 for 24 songs):
While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
Read more about it at "Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower Statutory Penalties for P2P"; "Judge Declares Mistrial in RIAA-Jammie Thomas Trial"; and "Thomas Verdict Overturned, Making Available Theory Rejected."
In testimony yesterday before the Subcommittee on Courts, the Internet, and Intellectual Property of the House of Representatives' Committee on the Judiciary, Ralph Oman, former Register of Copyrights of the United States and Pavel Professorial Lecturer in Intellectual Property Law Fellow at the George Washington University Law School, said that the NIH Public Access Policy will "destroy the commercial market" for "scientific, technical, and medical journals."
Here's an excerpt from Oman's testimony:
My basic concern about the NIH proposal is that it will, sooner rather than later, destroy the commercial market for these scientific, technical, and medical journals. If this dark prophesy comes to pass, who, I wonder, will handle all of these expensive and sensitive administrative details? Some of my academic colleagues are confident that this change in the mechanics of scientific publishing will have little or no impact on the private sector, and that it will remain as robust as ever, even if the NIH freely publishes all of the NIH peer-reviewed article manuscripts shortly after private publication. Some claim that they have "evidence" that STM publishing will continue to flourish. I have not seen that evidence. To me, it suggests an element of wishful thinking. In my experience, Congress is normally reluctant to hang major legislative change in copyright policy on the thin reed of wishful thinking. With the prospect of free copies available in the near term, who in the face of experience and reality can reasonably expect that subscribers to STM journals, faced with their own budgetary constraints and needs, will not look with real favor on alternative free sources? I can’t. It is belied by common sense. Certainly, many university and industry librarians will cancel their subscriptions to these learned journals, with some estimates of a cancellation rate approaching 50 percent. With plummeting sales, how could the STM publishers stay in business? This is a critical point, and one that this committee has a special sensitivity to. It really goes to the heart of the matter, in terms of public policy.
Dr. Martin Frank, Executive Director American Physiological Society, was also critical of the policy.
Here's an excerpt from Frank's testimony:
Because the NIH mandate in effect reduces copyright protection for publications to only one year, it risks undermining the revenue stream derived principally from subscriptions, that enables publishers to add value to research articles and to enhance readers’ ability to discover and use scientists’ work. As the number of full-text articles based upon NIH-funded science in PMC increases, concern grows that current journal subscribers will access the text from that website, rather than from the journal’s own online site. Over time, this is bound to cause subscription cancellations. If publication costs cannot be recovered through subscriptions, journals will try to recover them through author fees or similar mechanisms that would reduce funds available for research by amounts much greater than the cost of subscriptions. We are gravely concerned that the funding base of some journals may become eroded to the point where they can no longer adequately serve their communities and will be forced to implement or increase their authors' fees at a time when funding levels are shrinking. In both cases, researchers are disadvantaged—in one case by having less freedom to choose where to publish, or what community to reach, and in the other, failing to have adequate resources to fund research designed to develop treatments and cures for disease.
Here are links to testimony from the "Fair Copyright in Research Works Act" hearing:
Read more about it and related news at: "Congressional Committee Moves to Block NIH Public Access Policy," "At Hearing, Witness Says NIH Policy Will 'Destroy' Commercial Scientific Publishing," "More on Attempts to Undo the NIH Policy," "New Bill Would Forbid Copyright Transfer as a Condition for Federal Funding," and "Two Public Statements from the Anti-OA Lobby."
Public Knowledge has posted a summary of three copyright bills (and a rumor of a possible bill) that it says constitutes "a perfect storm of bad copyright legislation."
Analyzed in the post are the Enforcement of Intellectual Property Rights Act of 2008, the Fair Copyright in Research Works Act, the International Intellectual Property Protection and Enforcement Act of 2008, and the broadcast flag.
As reported previously in DigitalKoans ("Is the NIH Public Access Policy in Danger? House Subcommittee to Hold Hearing"), the Subcommittee on Courts, the Internet, and Intellectual Property of the House of Representatives' Committee on the Judiciary will hold a hearing on the "Fair Copyright in Research Works Act" on 9/11/2008. (See the post for contact information for Subcommittee members.)
The text of that bill is now available.
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."
John Wilbanks has released a video about the Scholars Copyright Project.
OCLC has announced the WorldCat Copyright Evidence Registry beta, a union catalog of copyright information.
Here's an excerpt from the press release:
The WorldCat Copyright Evidence Registry is a community working together to build a union catalog of copyright evidence based on WorldCat, which contains more than 100 million bibliographic records describing items held in thousands of libraries worldwide. In addition to the WorldCat metadata, the Copyright Evidence Registry uses other data contributed by libraries and other organizations.
Digitization projects continue for books in the public domain, but books whose copyright status is unknown are destined to remain in print and on shelves until their status can be determined. The process to determine copyright status can be lengthy and labor intensive. The goal of the Copyright Evidence Registry is to encourage a cooperative environment to discover, create and share copyright evidence through a collaboratively created and maintained database, using the WorldCat cooperative model to eliminate duplicate efforts. . . .
The Copyright Evidence Registry six-month pilot was launched July 1 to test the concept and functionality. Users can search the Copyright Evidence Registry to find information about a book, learn what others have said about its copyright status, and share what they know. . . .
During a later stage of the pilot, OCLC will add a feature enabling pilot libraries to create and run automated copyright rules conforming to standards they define for determining copyright status. The rules will help libraries analyze the information available in the Copyright Evidence Registry and form their own conclusions about copyright status.
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 Association of Research Libraries has released "PubMed Central Deposit and Author Rights: Agreements between 12 Publishers and the Authors Subject to the NIH Public Access Policy" by Ben Grillot, a second-year law school student.
Here's an excerpt from the press release:
To help authors make informed choices about their rights, Grillot compares how the agreements of 12 publishers permit authors to meet the requirements of the recently revised National Institutes of Health (NIH) Public Access Policy and share their works while they are under embargo. . . .
Grillot focuses his analysis on how the agreements differ in: the terms and procedures of deposit of the work, the length of any embargo period, and the rights of the author to use and share the work during the embargo period. . . .
Grillot concludes that the significant variability in publisher agreements requires authors with NIH funding to closely examine publisher agreements and the rights granted and retained when deciding where to publish their research. His analysis of these 12 agreements will help authors determine what to look for in an agreement and what questions to ask before signing.
A digital video of Marybeth Peters, U.S. Register of Copyrights, August 2nd interview on CSPAN's The Communicators is available on YouTube.
The United States Court of Appeals for the Federal Circuit has upheld the validity of an open source license, the Artistic License, in Jacobsen v. Katzer and Kamind Associates.
Read more about it at "Court of Appeals for Federal Circuit Overturns Jacobsen v. Katzer—Ruling as Text," "Federal Circuit Says Open Source License Conditions Are Enforceable as Copyright Condition," "Huge and Important News: Free Licenses Upheld," and "The Model Train Patent Story—Jacobsen v. Katzer et al."
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.
In January 2008, Kenneth Crews became the founding director of the Copyright Advisory Office at Columbia University. There are a variety of useful resources at the CAO's web site about U.S. copyright law, especially fair use.
Of particular interest, are:
The Digital Curation Centre has released "Creative Commons Licensing" as part of its Legal Watch Papers series.
Here's an excerpt:
CC is of great relevance to digital curation in the way it simplifies and increases third party access to and usage of copyright works. Curation is dependant on a range of strategies that require the making of copies and modifications. Unhindered, copyright could impinge on digital curation considerably. However use of these licences may ameliorate the difficulties.
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."
SHERPA's RoMEO service now contains over 400 publisher self-archiving policies.
Here's an excerpt from the announcement:
The RoMEO service, provided by the award winning SHERPA Partnership, uses a simple colour-code to classify policies and inform authors of what can be done with their articles, and offers users the ability to:
- View summaries of publishers' copyright policies in relation to self-archiving
- View if publisher policies comply with funding regulations, as some publishers are too restrictive and cannot be used to publish funded research
- To search journal and publisher information by Journal Title, Publisher Name and ISSN
RoMEO is seen as an essential resource by many in the Open Access community. RoMEO is funded by JISC and the Wellcome Trust. Journal information is kindly provided by the British Library's Zetoc service hosted by MIMAS
