Category: Copyright

AAP Reaches Agreement with Three Universities about E-Reserves Guidelines

The Association of American Publishers has announced it has reached agreement with Hofstra University, Marquette University, and Syracuse University about copyright guidelines for e-reserves.

The guidelines are below:

Here's an excerpt from the press release:

The guidelines, which were developed separately by the three universities, govern how librarians and faculty members distribute copyrighted content through library electronic course reserves systems, course management systems, faculty and departmental web pages and other digital formats.

AAP worked with each of the three universities in cooperative efforts to establish easily understood and common-sense standards that help faculty and staff understand and interpret their rights and responsibilities when using copyrighted content in educational settings. Each of the guidelines reflects the specific needs of the particular university and is consistent with the principles of fair use while providing helpful guidance as to when permission from the copyright holder is required to copy or post materials in digital formats. AAP believes the guidelines, which are similar to those adopted by Cornell University last year, will serve as models for others colleges and universities. . . .

In the last two years AAP has initiated discussions with a number of universities after observing that unlicensed digital copies of course materials were gradually replacing the licensed physical copying of articles, book chapters and other copyrighted works. While it is well established that physical copying of materials for distribution to multiple students, often in compilations known as coursepacks, generally requires permission from the copyright holder, faculty and staff seem less aware that permission is similarly required for distribution of electronic copies of such copyrighted materials.

Read more about it at "AAP Pressures Universities to Limit Fair Use" and "Despite Skeptics, Publishers Tout New 'Fair Use' Agreements With Universities" (Chronicle of Higher Education subscribers only).

Israeli vs. Canadian Copyright Law

A translation of the Israel's Copyright Act of 2007, which takes effect on May 25, 2008, is now available.

Last December, Ariel Katz, Innovation Chair in Electronic Commerce, Faculty of Law, University of Toronto, wrote an interesting analysis of the Israeli law ("What Can Canada Learn from Israel about Copyright Reform?"), which contrasted it to Canadian copyright law. In summary, he said:

Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel's innovative and creative record. This choice is essential for a small economy whose citizens' brain is the only natural resource. Canada should seriously consider doing the same.

EFF Files Amicus Brief in Atlantic v. Howell: Atlantic Is Trying to Prosecute Attempted Infringement

An amicus brief filed by the EFF suggests that Atlantic is suing Pamela and Jeffrey Howell based on attempted, rather than actual, infringement and that there is no evidence of infringement other than hearsay evidence by Atlantic's hired investigator (MediaSentry).

Here's en excerpt from the brief:

Plaintiffs' investigator, MediaSentry, did not observe Defendant's disseminating any materials to third parties. Nor do Plaintiffs contend that MediaSentry invited Defendants to make any unauthorized reproductions. Nor have Plaintiffs established that MediaSentry's downloads constitute circumstantial evidence that the Howell's computer disseminated copies of the 11 songs in question to any other KaZaA user. In fact, Plaintiffs' own evidence makes this seem particularly unlikely. According to Plaintiffs' expert, during the period that MediaSentry performed its investigation, there were 2,282,954 KaZaA users online, sharing 292,532,420 files. . . . Even accepting Plaintiffs' hearsay testimony as true, these facts together suggest that it is highly unlikely that, among the millions of KaZaA users who are likely to be sharing them at any time, these 11 songs would have been downloaded from Defendants' computer. At any instant, KaZaA users are likely to have thousands of sources for these particular songs to choose from and no reason to choose the Defendants' computer over any other. And while Plaintiffs may be correct that, in the aggregate, KaZaA users engage in a prodigious amount of infringing activity, that general statement tells us nothing about the crucial issue in this case: whether these Defendants transmitted (i.e., uploaded) any of these 11 songs during the time period in question.

Here's an excerpt from "EFF Files Brief in Atlantic v. Howell Resisting RIAA's 'Attempted Distribution' Theory":

As in more than 20,000 other lawsuits, the recording industry claims that Mr. and Mrs. Howell committed copyright infringement by using P2P file sharing software (in this case, Kazaa). But rather than going to the trouble of proving that the Howells made any infringing copies (by ripping CDs or downloading songs) or any infringing distributions (by uploading to other Kazaa users), the record labels argue that simply having a song in a shared folder, even if no one ever downloaded it from you (i.e., "making available"), infringes the distribution right. This essentially amounts to suing someone for attempted distribution, something the Copyright Act has never recognized (although the DoJ unsuccessfully tried to get something like that from Congress last year).

Swedish MPs Want to Legalize Noncommercial File Sharing

Seven Swedish MPs have written an article calling for Sweden to legalize noncommercial file sharing.

Decriminalizing all non-commercial file sharing and forcing the market to adapt is not just the best solution. It’s the only solution, unless we want an ever more extensive control of what citizens do on the Internet. Politicians who play for the antipiracy team should be aware that they have allied themselves with a special interest that is never satisfied and that will always demand that we take additional steps toward the ultimate control state. . . .

The simple truth is that almost all communication channels on the Internet can be used to distribute copyrighted information. If you can use a service to send a message you can most likely use the same service to send an mp3-song. Those who want to prevent people from exchanging of copyrighted material must control all electronic communication between citizens.

Read more about it at "Political Breakthrough for Filesharers in Sweden" and "Swedish Politicians Strike Blows at Copyright Lobby."

Source: "Legalize File Sharing, Say Swedish MPs."

Podcasts from the CNI Fall 2007 Task Force Meeting

Podcasts are now available from CNI's Fall 2007 Task Force Meeting. Here's a selection:

NIH Public Access Policy Implementation

On an updated Web page and a FAQ, the National Institutes of Health (NIH) has explained its implementation of the Public Access Policy required by Division G, Title II, Section 218 of PL 110-161 (Consolidated Appropriations Act, 2008).

Here's an excerpt from the NIH Public Access Policy Web page:

How to Comply

Address Copyright

Make sure that any copyright transfer or other publication agreements allow the article to be submitted to NIH in accordance with the Policy.

Submit Article

Authors may submit an article to the journal of their choice for publication.

  1. If you choose to publish your article in certain journals, you need do nothing further to comply with the submission requirement of the Policy. See http://publicaccess.nih.gov/submit_process_journals.htm for a list of these journals.
  2. For any journal other than one of those in this list, the author must:

    a. Inform the journal that the article is subject to the Public Access Policy when submitting it for publication.

    b. Make sure that any copyright transfer or other publication agreement allows the article to be submitted to NIH in accordance with the Policy. For more information, see the FAQ Whose approval do I need to submit my article to PubMed Central? and consult with your Institution.

    c. Submit the article to NIH, upon acceptance for publication. See the Submission Process for more information.

Cite Article

When citing their NIH-funded articles in NIH applications, proposals or progress reports, authors must include the PubMed Central reference number for each article.

Important Dates

  • April 7, 2008 As of April 7, 2008, all articles arising from NIH funds must be submitted to PubMed Central upon acceptance for publication.
  • May 25, 2008 As of May 25, 2008, NIH applications, proposals, and progress reports must include the PubMed Central reference number when citing an article that falls under the policy and is authored or co-authored by the investigator, or arose from the investigator’s NIH award. This policy includes applications submitted to the NIH for the May 25, 2008 due date and subsequent due dates.

Peter Suber has made some helpful comments about the policy implementation in "New FAQ for New NIH Policy" and "Text of the NIH OA Policy."

AT&T, Microsoft, and NBC: It's Time to Filter the Internet

In "AT&T and Other ISPs May Be Getting Ready to Filter," The New York Times reports that AT&T, Microsoft, and NBC are lining up in support of filtering the Internet to cope with digital copyright infringement problems.

On December 31, 2007, the Australian Telecommunications Minister announced that there would be mandatory Internet filtering for "inappropriate" material, and a posting about that decision, "Australian Filtering Announcement Raises Questions and Ire," provides a good overview of national-level filtering issues.

Read more about it at "Is AT&T Siding With NBC To Get Rid Of Neutrality?"

The RIAA and CD Ripping for Personal Use: Infringement or Not?

Recently, there has been a flurry of articles about the RIAA's stance on the legality of CD ripping for personal use that was triggered by a Washington Post article ("Download Uproar: Record Industry Goes After Personal Use") that was later corrected. The controversy resulted in a debate on National Public Radio between the article's author and RIAA's president (Cary Sherman). In it, Sherman would not say that CD ripping for personal use was legal, but he did say: "Not a single (legal) case has ever been brought (by the RIAA against someone for copying music for personal use)."

Just as the dust seemed to be settling, Wired Blog Network has published "RIAA Believes MP3s Are A Crime: Why This Matters—Updated," takes another look at what the RIAA has said on the issue, and concludes "The RIAA doesn't believe Americans have any right—or Fair Use legal defense—to play copyrighted material on the device and in the format of their choosing."

UK May Make CD Ripping for Legal in Some Cases

Did you know that ripping MP3 files from CDs was illegal in the UK? The good news (for a change) is that Lord Triesman, Minister for Intellectual Property, has initiated an IP reform consultation that may result in making CD ripping legal for distance education, personal use, parody, and preservation purposes.

Read more about it at "Proposal to Make CD Copying Legal," "UK Issues Public Consultation on More Flexible Copyright," "U.K. Looks to Relax Restrictive Copyright Laws," and "UK Wants to Make CD Rips Legal (at Last)."

Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video

American University's Center for Social Media has released Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, which examines fair use issues in user-created digital videos. See the announcement for links to videos used in the report.

Here's an excerpt from the "Next Steps" section:

The effervescence of this moment at the dawn of participatory media should not be mistaken for triviality. The practices of today’s online creators are harbingers of a far more interactive media era. Today’s makers—feckless, impudent, brash, and extravagant as they often are—in fact are the pioneers of an emerging media economy and society. Recognition of the importance of fair use, within the copyright law toolkit for cultural creation, is both prudent and forward-looking for those concerned with maintaining an open society.

Library Copyright Alliance Expresses Concerns over Section 104 of the PRO IP Act

The Library Copyright Alliance has sent a letter to Reps. Howard L. Berman and Howard Coble expressing concern over the chilling effect of Section 104 of the PRO IP Act on the use of orphan works by libraries. By way of example, they note that a library that made 100 letters from World War II soldiers in 1945 available on its Website could potentially face up to $15,000,000 in statutory damages.

Canadian DMCA-Stye Copyright Law on Hold . . . for the Moment

Canadian Industry Minister Jim Prentice didn't introduce a DMCA-style copyright bill yesterday, and there is speculation that this due to increasing protests against the bill.

According to "Industry Canada Holds Off on Copyright Reform Bill," Prentice said that the: "bill would not be tabled [introduced] in the House until such time as myself and the minister of Canadian Heritage, Status of Women and Office Languages are satisfied."

Read more about it at "'Canadian DMCA' Delayed, Protestors Cautiously Optimistic," "Canadian Netroots Rise Up Against Tory Copyright Plans," "CBC on the Canadian DMCA Delay," and "Prentice's Moment."

Google's Senior Copyright Counsel on the PRO IP Bill

Noted copyright lawyer William Patry, who is Google's Senior Copyright Counsel and who is the author of the seven-volume Patry on Copyright, has published a trenchant analysis of the PRO IP bill ("What Does It Mean to Be Pro-IP?"). (Note that Patry indicates in his blog that:"The views in this blog are strictly mine and should not be attributed to Google Inc.")

Here's an excerpt:

This provision [SEC. 104. COMPUTATION OF STATUTORY DAMAGES IN COPYRIGHT CASES] is one of the most gluttonous in the whole bill. It seeks to expand radically the amount of statutory damages that can be recovered, and in cases where there are zero actual damages. The provision is intended to benefit the record industry but will have terrible consequences for many others; the provision has nothing to do with piracy and counterfeiting; instead it seeks to undo rulings in the 2000 MP3.com litigation, a decidedly non-piracy or counterfeiting case, instead involving the use of digital storage lockers. Under the original MP3.com decision, where a CD had twelve tracks, there was only one award of statutory damages possible. Under the bill, there may be 25: there would be 12 for each track on the sound recording, 1 for the sound recording as a whole, and 12 for each musical composition. Under this approach, for one CD the minimum award for non-innocent infringement must be $18,750, for a CD that sells in some stores at an inflated price of $18.99 and may be had for much less from amazon.com or iTunes. The maximum amount of $150,000 then becomes three million, seven hundred and fifty thousand dollars per CD. Now multiple that times a mere ten albums, and one gets a glimpse at the staggering amount that will be routinely sought, not just in suits filed, but more importantly in thousands for cease and desist letters, where grandmothers and parents are shaken down for the acts of their wayward offspring. These private non-negotiable demands don’t see the light of day, but they have resulted in "settlements" wherein ordinary people have paid abnormal amounts of money rather than be hauled into court and thereby incur costs that will bankrupt them. One only wishes Congress would hold a hearing on this practice.

IFPI Wants European ISPs to Filter/Block the Internet

The International Federation of Phonographic Industries has sent a letter to European ISPs asking them to filter unlicensed audio files based on digital fingerprints, to block "objectionable" peer-to-peer downloading services, and to block "infringing" Websites.

Read more about it at "IFPI's European Christmas List: Content Filtering and P2P Blocking" and "Music Industry Pressures EU Politicians for Filtered Internet."

House Copyright Bill Would Stiffen Penalties and Create New White House/DOJ Intellectual Property Units

In the U.S. House of Representatives, Reps. John Conyers, Jr. (D-MI), Lamar Smith (R-TX), Howard Berman (D-CA), and nine other House members have introduced the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" (PRO IP).

Here's an excerpt from the press release:

Specifically, the PRO IP bill does the following:

  • Titles I and II strengthen the substantive civil and criminal laws relating to copyright and trademark infringement.
  • Title III of the legislation establishes the Office of the United States Intellectual Property Enforcement Representative (USIPER), in the Executive Office of the President, to enhance nationwide and international coordination of intellectual property enforcement efforts.
  • Title IV provides for the appointment of intellectual property officers to work with foreign countries in their efforts to combat counterfeiting and piracy.
  • Title V of the legislation authorizes the creation of a permanent Intellectual Property Division within the Department of Justice. The purpose of the new IP Division is to improve law enforcement coordination. This is accomplished, in part, by transferring the functions of the existing Computer Crime and Intellectual Property section (CCIPs) that relate to intellectual property enforcement to the new IP Division. In addition, Title V provides DOJ with new resources targeted to improve IP law enforcement, including local law enforcement grants and additional investigative and prosecutorial personnel. It also requires that DOJ prepare an annual report that details its IP enforcement activities.

Read more about it at "Congress' Copyright Reform: Seize Computers, Boost Penalties, Spend Money"; "Major Copyright Bill Boosts Penalties, Creates New Agency"; and "Piracy Law Unveiled in Washington."

Only 50,000 Signatures Needed for Referendum on New Swiss DMCA-Style Copyright Law

Florian Bösch is organizing a petition drive to put Switzerland's new DMCA-style copyright law to a referendum at the No Swiss DMCA website. Only 50,000 signatures are needed, but they must be collected before January 24, 2008.

Read more about it at "DMCA-Style Laws Coming to Canada, Switzerland"; "Swiss DMCA Coming Down—50,000 Signatures Needed to Unmake It"; "Swiss DMCA Petition—50,000 Signatures Will Kill Switzerland's Copyright Law"; and "Swiss DMCA Quietly Adopted."

MPAA Takes Down the MPA University Toolkit Because of GNU GPL Legal Issues

Slashdot reports that the Motion Picture of Association of America has removed the MPA University Toolkit software from the software's website after Matthew Garrett contacted the MPAA's ISP indicating that the software violated the GNU GPL. Garrett had attempted to contact the MPAA directly, but it was unresponsive. Currently, only Toolkit documentation remains on the website.

Here's a U.S. Export Canadians May Not Want: DMCA-Style Copyright Laws

There are persistent reports that the Canadian government will introduce copyright legislation that is modeled on the U.S. Digital Millennium Copyright Act as soon as next week.

Read more about it at "Canada Moves to Reform Copyright Protection"; "Canada's Coming DMCA Will Be the Worst Copyright Yet"; "Canada’s Copyright Law Is Stronger and Better than U.S.'s"; "Copyright Choices and Voices"; "DMCA-Style Laws Coming to Canada, Switzerland"; and "A New Copyright Law Is Coming."

MPAA Toolkit May Allow Internet Users to See Internal University Network Traffic

The Washington Post reports that the Motion Picture of Association of America is trying to persuade universities to utilize its new MPA University Toolkit, which uses Snort and ntop to provide detailed internal network use statistics that may identify possible copyright infringers.

Security experts have determined that, in its default configuration, the MPA University Toolkit sets up a Web server that provides use statistics to any Internet user unless it is blocked from doing so by a firewall. There is a user/password option, but network administrators are not prompted to set it. Moreover, the software "phones home" to the MPAA upon setup, providing the organization with the IP address of the server.

Read more about it at "MPAA University 'Toolkit' Raises Privacy Concerns."

Two Strikes and You're Out: France Plans to Disconnect Digital Pirates from the Internet

The French Ministry of Culture has proposed a number of measures to deal with illegal downloading on the Internet, including a controversial proposal to terminate accused pirates' Internet access after two downloading violations.

Here's an excerpt from "French Gov't Plans to Disconnect Content Pirates":

The government has won agreement for its latest proposals from the French media industry, which will implement the watermarking measures and make legal downloads of films more widely and rapidly available. Albanel signed the agreement Friday with TV channels, Internet service providers (ISPs), and groups representing filmmakers, authors and musicians rights groups.

In return for the support of these organizations, the government will create a new agency to monitor Internet traffic for the presence of watermarked files and handle complaints from rights holders. Anyone whose Internet connection is used to download such files could receive an official warning from their ISP. A second offense could result in their contract with the ISP being terminated and their name being added to a registry of offenders.

Read more about it at "The Insanity of France's Anti-File-Sharing Plan: L'État, C'Est IFPI," "French Pact Aims to Fight Unauthorized Downloading," and "Pirates Face Crackdown over Movie Downloads."