Digital Copyright Wars – Page 18

Shawn Bentley Orphan Works Act of 2008 Passed by Senate

The Shawn Bentley Orphan Works Act of 2008 has been passed by the Senate by unanimous consent. See ARL's "Orphan Works Legislation" briefing for background information.

The bill now goes to the House.

Major Copyright Law, the PRO-IP Act, Passed by Senate

The Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act), formerly called the Enforcement of Intellectual Property Rights Act, has been passed by the Senate sans a controversial provision that would have given the Justice Department the ability the bring civil suits against infringers, a provision that the DoJ opposed. The provision to create an Intellectual Property Enforcement Coordinator, opposed by the White House, remained intact.

ALA Urgent Call to Action on Orphan Works Bill

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.)

U.S. Departments of Commerce and Justice Oppose Title I of "Enforcement of Intellectual Property Rights Act"

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.

Judge in Capitol Records v. Jammie Thomas: Merely Making Available Not Enough for Infringement

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.

Public Knowledge Warns That Pending Copyright Bills Are a "Perfect Storm"

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.

Copyright Extension Will Help Most EU Performing Artists? Guess Again

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.

Copyright Clearance Center Offers Large-Institution Blanket Licenses, UT Austin Signs Up

The Copyright Clearance Center now offers blanket copyright licenses to large institutions. The University of Texas at Austin has signed up.

Shawn Bentley Orphan Works Act of 2008 Stalled in Senate

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."

Lenz v. Universal: Fair Use Must Be Considered before Takedown Notices Are Sent

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).

Internet Radio, RIP?

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.

Memo to Campus CIOs about the Higher Education Opportunity Act's Illegal File Sharing Provisions

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.

Taking Forward the Gowers Review of Intellectual Property: Penalties for Copyright Infringement

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.

Copyright Alert: Senate Passes Higher Education Opportunity Act

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.

Copyright Alert: House Passes Higher Education Opportunity Act

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."

Enforcement of Intellectual Property Rights Act of 2008

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.

Six Largest UK ISPs to Crackdown on Illegal File Sharing in Deal with BPI

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.

EC Proposes 95-Year Copyright Term for Recorded Performances, Issues Copyright Green Paper

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).

Text of Georgia State University Filing in E-Reserves Copyright Case

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.

Anti-Counterfeiting Trade Agreement: ISP Filtering and Three-Strikes?

KEI has leaked the RIAA's suggestions for regulations to be included in the Anti-Counterfeiting Trade Agreement, such as the use of Internet filtering to stop infringement and the termination of ISP service to repeat infringers. (ACTA is being negotiated in secret.)

Summary of New Zealand's Copyright (New Technologies) Amendment Bill

"Copyright Developments: New Zealand" provides a brief summary of the key features of New Zealand's Copyright (New Technologies) Amendment Bill, which received Royal assent on 4/11/08.

Georgia State Claims Fair Use in E-Reserves Lawsuit

In a filing in the Cambridge University Press, Oxford University Press, and SAGE Publications copyright infringement suit against Georgia State, Georgia State University has claimed that is use of materials from those publishers in its e-reserves system is permitted under fair use provisions.

Associated Press Charges By the Word for Quotes

The Associated Press has established a fee schedule for the use of excerpts from its articles by bloggers and others. There are different fees for standard, educational, and nonprofit use, but all fees are based on word counts. For example, the free for nonprofit use of 5-25 words is $7.50.

In "Associated Press Declares War on Bloggers, Fair Use," Public Knowledge blogger Mehan Jayasuriya says:

That’s right, if you want to quote an AP article in your blog post, you’ll be paying by the word for the privilege. What’s more, in order to purchase a license to quote AP content, you’ll have to agree to a Terms of Use agreement, which states, among other things, that you may not criticize either the AP or the author of the article in your post or article. If you do, the AP reserves the right to revoke the license granted.

The problem with the AP’s licensing structure is that it ignores existing fair use rights, which clearly state that a short quotation from any news story is fair game. . . .

Blogger Michelle Malkin decided to calculate, using the AP’s licensing structure, how much the AP owes her for quotations it has used from her blog posts in recent months (it’s also worth noting that the AP did not link to her blog in the articles where these quotes were used). By Malkin’s count, the AP owes her somewhere in the neighborhood of $132,125.

Associated Press vs. Drudge Retort: "Both Parties Consider the Matter Closed"

After a firestorm of criticism, the Associated Press has issued a press release saying that its dispute with the Drudge Retort over that blog's use of short quotes from AP stories is over: "Both parties consider the matter closed."

Short Quotes Not Fair Use? Associated Press Sends Take-Down Letter to Drudge Retort

The Associated Press has sent the Drudge Retort a DMCA take-down letter demanding that 6 posts and one comment with short quotes from AP articles be removed from the site.

Negative reaction from bloggers and others against what was viewed as an assault on fair use was swift, resulting in a TechCrunch ban on AP story use, a broader AP ban by bloggers, and a wave of criticism.

As a result, AP decided to halt further action against other Weblogs until new guidelines could be established, but it has not withdrawn its letter the Drudge Retort.