Category: Digital Copyright Wars

Tim Jones has posted "12 Trends to Watch in 2010" in the Electronic Frontier Foundation's Deeplinks blog.

Here's an excerpt:

2. Books and Newspapers: .TXT is the new .MP3

Since 2000, the music industry has most spectacularly flailed (and failed) to combat the Net's effect on its business model. Their plans to sue, lock-up and lobby their way out of their problem did nothing to turn the clock back, but did cause serious damage to free speech, innovation and fair use.

These days, the book and newspaper industries are similarly mourning the Internet's effect on their bottom line. In 2009, Rupert Murdoch changed the tone of the debate when he called those who made fair use of his papers' content "thieves". We think 2010 and beyond will see others in the print world attempt to force that view, and break the fair use doctrine by lobbying to change accepted copyright law, challenging it in the courts, or by placing other pressures on intermediaries.

A cluster of similar battles around user control are also gathering around e-reader products like Kindle and Google Book Search, many of which rewrite the rules for book ownership and privacy wholesale.

So, in 2010, will the printed word step smartly into the digital future, or will it continue to stay stuck in the denial and bargaining phase that dominated digital music's lost decade?

The Google Public Policy channel has released Google D.C. Talk: ACTA—The Global Treaty That Could Reshape the Internet. ACTA stands for the Anti-Counterfeiting Trade Agreement, a very important intellectual property rights treaty that is being secretly negotiated.

Here's an excerpt from the announcement:

The panel will tackle important questions like: Will ACTA preserve the existing balance in intellectual property laws, providing not just enforcement for copyright holders but also appropriate exceptions for technology creators and users? Will it undermine the legal safe harbors that have allowed virtually every Internet service to come into existence? And will it encourage governments to endorse "three strikes" penalties that would take away a user's access to the Internet?

The UK Intellectual Property Office has released © The Way Ahead: A Strategy for Copyright in the Digital Age.

Here's an excerpt:

Based on the findings, the Government's reported intentions are:

• for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
• for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;
• for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to 'orphan works' such as out-of-print books;
• for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
• for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.

This means:

• UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and
• A willingness on the Government's part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.

Jessica Litman, John F. Nickoll Professor of Law at the University of Michigan Law School, has self-archived "Real Copyright Reform" at SSRN.

Here's the abstract:

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright system is failing its intended beneficiaries. The foundation of copyright law's legitimacy, I argue, derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another's exploitation of copyrighted works. I argue that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, I suggest, is to reallocate copyright's benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.

Noted copyright expert William Patry, Senior Copyright Counsel at Google and former copyright counsel to the U.S. House of Representatives Committee on the Judiciary, has published Moral Panics and the Copyright Wars with Oxford University Press. Patry is also blogging on this topic at Moral Panics and the Copyright Wars. (His well-regarded previous blog was The Patry Copyright Blog.)

Here's an excerpt from the press release:

In Moral Panics And The Copyright Wars, Patry details the path that we have taken to get to our current misunderstanding of copyright laws. The most prolific scholar of copyright in history and the author of an eight-volume treatise on copyright and a separate treatise on the fair use doctrine, Patry argues that the cause of these copyright wars throughout history can be largely attributed to words—specifically, metaphors. Patry describes different kinds of metaphors, using them to further illustrate the ways that copyright laws have come to be unnecessarily expanded and misunderstood. For example, nowadays the term "pirate" is used in many instances to describe a type of copyright violation. Patry writes that it is the repetition of the pirate metaphor that makes the term stick, although the metaphor may be used incorrectly or may even be entirely false. This repetition of such metaphors causes whatever company or individual that has come to be associated with the word "pirate" to always be attached to the negative traits associated with a "pirate." This is just one of the ways that Patry shows the influence that words have had in negatively expanding copyright laws as well as causing the public, those who the laws are meant to help, to misunderstand them.

Patry contends that it has been this metaphoric language that has led to poor business decisions and obscured copyright law's true, public purpose. He concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning—and that bring respect back to our copyright process.

Public Knowledge has released Forcing the Net Through a Sieve: Why Copyright Filtering is Not a Viable Solution for U.S. ISPs.

Here's an excerpt:

Copyright filtering, the latest proposed "magic bullet" solution from the major music and movie studios and industry trade groups, poses a number of dangers to Internet users, legitimate businesses and U.S. federal government initiatives to increase the speed, affordability and utilization of broadband Internet services. The following whitepaper presents a number of reasons why the use of copyright filters should not be allowed, encouraged or mandated on U.S. Internet Service Provider (ISP) networks. Among them:

1. Copyright filters are both underinclusive and overinclusive. A copyright filter will fail to identify all unlawful or unwanted content while harming lawful uses of content.

2. Copyright filter processing will add latency. Copyright filters will slow ISP networks, discouraging use, innovation and investment and harming users, businesses and technology policy initiatives.

3. The implementation of copyright filters will result in a technological arms race. Users will act to circumvent the filters and the architects of the filters will find themselves caught in a costly, unwinnable arms race.

4. Copyright filters do not make economic sense. The monetary costs associated with copyright filtering far outweigh any perceived benefits.

5. Copyright filters will discourage investment in the Internet economy. Copyright filters will disrupt the Internet ecosystem, severely undermining our most promising engine for economic growth.

6. Copyright filters will harm free speech. Due to technological limitations, copyright filters will harm lawful, protected forms of speech such as parody and satire.

7. Copyright filters could undermine the safe harbor provisions that shield ISPs from liability. Under the Digital Millennium Copyright Act (DMCA), ISPs are shielded from liability for their users’ actions. Copyright filters could undermine these safe harbors, which have allowed the Internet to become the most important communications medium of the modern era.

8. Copyright filtering could violate the Electronic Communications and Privacy Act. Copyright filtering could constitute unlawful interception under the Electronic Communications and Privacy Act (ECPA).

Felix Oberholzer-Gee and Koleman Strumpf of the Harvard Business School have released "File-Sharing and Copyright" as a working paper.

Here's an excerpt:

As our survey indicates, the empirical evidence on sales displacement is mixed. While some studies find evidence of a substitution effect, other findings, in particular the papers using actual file-sharing data, suggest that piracy and music sales are largely unrelated. In contrast, there is clear evidence that income from complements has risen in recent years. For example, concert sales have increased more than music sales have fallen. Similarly, a fraction of consumer electronics purchases and internet-related expenditures are due to file sharing. Unfortunately, we know little about the distribution of these impacts. How markets for complimentary goods have responded to file sharing remains an area of inquiry that is largely unexplored in academic research.

On the basis that “every man is presumed innocent until he has been proven guilty,” the French Constitutional Council has rejected the provision in the Création et Internet law that would have allowed the HADOPI to disconnect alleged copyright infringers from the Internet.

Read more about it at “France Suspends Three Strikes“; “French Court Defangs Plan to Crack Down on Internet Piracy“; "French Court Savages ‘Three-Strikes’ Law, Tosses It Out."