Digital Copyright Wars – Page 8

"New ‘Breaking Down Barriers to Innovation Act’ Targets Many of DMCA Section 1201’s Problems"

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"

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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You Didn’t Think It Was Over, Did You? New Motion in GSU Copyright Case

According to "Publishers' Move Could Mean 'Whole New Trial' in GSU Copyright Case," the plaintiffs have filed a motion to "reopen the trial record, and have asked that new evidence be used to determine whether some of the university's online e-reserve course readings are infringing copyright."

The article also mentions a recent e-print by Brandon Butler, "Transformative Teaching and Educational Fair Use after Georgia State."

Here's an excerpt from the e-print:

The latest installment in the history of educational fair use, the 11th Circuit's opinion in the Georgia State e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use (which the court studiously avoids). Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use caselaw, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and therefore entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights, and first amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine.

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UK Launches New Licensing Program for 91 Million Orphan Works

The UK has launched a new licensing program for orphan works that will cover around 91 million works.

Here's an excerpt from the announcement:

A new licensing scheme launched today (29 October 2014) could give wider access to at least 91 million culturally valuable creative works-including diaries, photographs, oral history recordings and documentary films.

These works are covered by copyright, but rights holders cannot be found by those who need to seek permission to reproduce them. Under the new scheme, a licence can be granted by the Intellectual Property Office so that these works can be reproduced on websites, in books and on TV without breaking the law, while protecting the rights of owners so they can be remunerated if they come forward.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

Fair-Use and E-Reserves: "A Reversal for Georgia State"

Kevin Smith has published "A Reversal for Georgia State" in Scholarly Communications @ Duke.

Here's an excerpt:

The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use. The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully. But the hot news right now is that the Court of Appeals has reversed the District Court's judgment and remanded the case back for proceedings consistent with the new opinion. The injunction issued by the District Court and the order awarding costs and attorney's fees to GSU have been vacated.

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"Copyright’s Paradox: The Public Interest and Private Monopoly"

Nicholas Ruiz has self-archived "Copyright's Paradox: The Public Interest and Private Monopoly."

Here's an excerpt:

Copyright in its current state presents two major concerns: 1) The broad scope of the derivative right undermines the idea/expression dichotomy and adds doubt in the minds of the secondary users; and 2) The custom of extending durations of "existing" copyrights is unconstitutional and is causing a stagnate public domain. As a consequence of these problems, the free flow of ideas and dissemination of information has been thwarted. In response to these problems, I have researched possible remedies, looking to copyright systems abroad, other legal scholars, our history, and other developed areas of law.

There must be some kind of mechanism to limit Congress' ability of extending existing copyright terms; otherwise the Constitutional mandate of a "limited" term will have no consequence. This comment suggests reinstating requisite formalities, the two-term copyright regime, and a new formulation of the derivative works right.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

Google Settles American Society of Media Photographers, Inc. et al. v. Google Inc.

Google has settled the American Society of Media Photographers, Inc. et al. v. Google Inc. lawsuit. The agreement is confidential.

Here's an excerpt from the press release:

The agreement resolves a copyright infringement lawsuit filed against Google in April, 2010, bringing to an end more than four years of litigation. It does not involve any admission of liability by Google. As the settlement is between the parties to the litigation, the court is not required to approve its terms.

This settlement does not affect Google's current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

"The Rise, Fall, and Rise of ACTA?"

Peter (Jay) Smith has published "The Rise, Fall, and Rise of ACTA?" in Digital Studies.

Here's an excerpt:

In July 2012 the European Parliament defeated the Anti-Counterfeiting Trade Agreement (ACTA). Supposedly the attempt to impose global norms on intellectual property rights and thereby restrict digital copyright was dead. Or was it? This paper argues that the spirit of ACTA may live on in a host of other trade agreements currently being negotiated. That is, ACTA, or even more restrictive versions of it, could be imposed through the back door at least upon weaker states through bilateral agreements with the United States and the European Union. The result could be a spaghetti bowl of rules on digital copyright with some countries enjoying more digital rights, online freedom, and privacy than others.

Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

"EFF Urges Appeals Court to Keep Protecting Fair Use"

EFF has released "EFF Urges Appeals Court to Keep Protecting Fair Use."

Here's an excerpt:

In this latest appeal, the Authors Guild (and its supporters) claim that fair use is being unjustly expanded, portraying Judge Chin's ruling and other recent court opinions as some kind of fair-use creep, stretching beyond the original intent of the doctrine. Specifically, the Guild argues that the first of the four statutory fair use factors—the purpose of the use, which asks whether the use of the copyrighted material is transformative and/or non-commercial—weighs against Google. The Authors Guild and its amici insist that a use cannot be transformative if it doesn't add new creative expression to the pre-existing work. But as Judge Chin so rightly recognized, a use can be transformative if serves a new and distinct purpose.

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Economic Impacts of Adapting Certain Limitations and Exceptions to Copyright and Related Rights

The European Commission has released Economic Impacts of Adapting Certain Limitations and Exceptions to Copyright and Related Rights.

Here's an excerpt from the summary:

The first part of the study is the report by Charles River Associates "Assessing the economic impacts of adapting certain limitations and exceptions to copyright and related rights in the EU" (Langus et al., 2013, henceforth "CRA Methodology Report"), which establishes a methodology to assess exceptions and limitations to copyright. . . .

In turn, the present report uses the aforementioned methodology to assess the economic impacts of specific policy options in several topics of interest, in view of providing policy guidance on these topics. This report focuses on the following topics:

Digital preservation by cultural heritage and educational institutions;

The provision of remote access by cultural heritage and educational institutions to their collections for the benefit of their patrons;

E-lending by publicly accessible libraries;

Text and data mining for the purpose of scientific research;

Reproductions made by natural persons for private uses.

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EU Advocate General Issues Opinion on Library Digitization

The European Union's Advocate General has issued an opinion on library digitization.

Here's an excerpt from the announcement:

Here's an excerpt:

Next, the Advocate General considers that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if their being made available to the public by dedicated terminals requires it. That may be the case where it is necessary to protect original works which, although still covered by copyright, are old, fragile or rare. That may also be the case where the work in question is consulted by a large number of students and its photocopying might result in disproportionate wear.

However, Mr Jääskinen makes clear that the directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.

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"Copyright Roundup 3—Changes in UK Law"

Kevin Smith has published "Copyright Roundup 3—Changes in UK Law" in Scholarly Communications @ Duke.

Here's an excerpt:

Second, the British are now adopting an exception for text and data mining into their law. This is huge, and reinforces the idea I have expressed before that libraries should be reluctant about agreeing to licensing terms around TDM; the rights are likely already held by users in many cases, so those provisions really would have the effect, despite being promoted as assisting research, of putting constraints (and sometimes added costs) on what scholars can already do. This is probably true in the U.S., where fair use likely gets us further than vendor licenses would, and it has now been made explicit in the U.K.

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Open WiFi and Copyright: A Primer for Network Operators

EFF has released Open WiFi and Copyright: A Primer for Network Operators.

Here's an excerpt from the announcement:

At EFF, we are big fans of open wireless. But we also know that operators of open networks sometimes worry that they could be legally responsible if people use their networks to engage in copyright infringement. We've put together a short white paper that generally explains the scope and limits of operator liability for the acts of users, and additional steps network operators may choose to take to further limit their legal risk. As we explain in the paper, copyright liability for the acts of your users is less likely than you might think, as long as you (1) simply provide a means of transmission; and (2) act reasonably and responsibly.

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"Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s"

Niva Elkin-Koren has published "Can Formalities Save the Public Domain? Reconsidering Formalities for the 2010s" in The Berkeley Technology Law Journal.

Here's an excerpt:

In essence, formalities advocates argue that current copyright law protects too many works, and shifting back to an opt-in regime would help restore the balance in copyright law between incentives and access. Restoring formalities would arguably expand the public domain by increasing the number of works in which copyright is not affirmatively claimed. It has been further suggested that works of unknown authorship are underused. 8 This is due to uncertainty about whether they are protected by copyright or not, which creates a chilling effect. A notice requirement would signal to potential users which works are protected by copyright. A notice would also generate the information necessary for licensing, thereby facilitating the clearance of rights and reducing the problem of orphan works.

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"Orphans in Turmoil: How a Legislative Solution Can Help Put the Orphan Works Dilemma to Rest"

Vicenç Feliú has self-archived "Orphans in Turmoil: How a Legislative Solution Can Help Put the Orphan Works Dilemma to Rest" in SSRN.

Here's an excerpt:

The orphan works issue has continued to grow in the U.S. despite strong efforts to find a workable solution. Stake holders on both sides of the issue have proposed and opposed solutions and compromises that could have alleviated the problem, and we are still no closer to an agreement. This paper posits that the solutions offered in the proposed legislation of 2006 and 2008 provide a strong working foundation for a legislative answer to the issue. To make that answer workable, a new legislative effort would have to take into account the questions raised by stakeholders to the previous legislative attempts and provide workable answers. This paper also proposes those answers can be found in the working models used by other jurisdictions attempting to solve the orphan works dilemma.

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Copyright Office Seeks Comments on Orphan Works and Mass Digitization

The US Copyright Office is seeking comments on orphan works and mass digitization and it will hold public roundtable discussions on these topics.

Here's an excerpt from the announcement:

The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.

The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.

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E-print Copyright Debate Continues: "Its the Content, Not the Version!"

Kevin Smith has published "Its the Content, Not the Version!" in Scholarly Communications @ Duke.

Here's an excerpt:

Throughout this discussion, the proponents of the position that copyright is transferred only in a final version really do not make any legal arguments as such, just an assertion of what they wish were the situation (I wish it were too). But here is a legal point—the U.S. copyright law makes the difficulty with this position pretty clearly in section 202 when it states the obvious principle that copyright is distinct from any particular material object that embodies the copyrighted work. So it is simply not true to say that version A has a copyright and version B has a different copyright.

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"Guest Post: Charles Oppenheim on Who Owns the Rights to Scholarly Articles"

Charles Oppenheim has published "Guest Post: Charles Oppenheim on Who Owns the Rights to Scholarly Articles" in Open and Shut.

Here's an excerpt:

Posting D [draft article] on an OA repository is the so-called "Harnad-Oppenheim" solution, first proposed by Stevan Harnad and me more than 10 years ago.

When the solution was first enunciated, publishers dismissed it for two reasons: firstly, why would anyone want to read a draft when the final perfect version can be obtained via the publisher? And secondly, it would be difficult to track down a copy of D anyway. Their comments remain valid today, though the second one is not as strong because of services such as Google Scholar. But no publisher suggested that the solution was illegal because publishers owned the copyright to D, and they were right not to do so. The law is clear that I own the copyright in D. That is why I am so puzzled that some recent non-publisher commentators seem to think publishers own the copyright in D.

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"Last Sale? Libraries’ Rights in the Digital Age"

Jennifer Jenkins has published "Last Sale? Libraries' Rights in the Digital Age" in College & Research Libraries News.

Here's an excerpt:

What's the difference between a sale and license? Normally, the law is skeptical of limitations on transfers of property. Can Snickers say you merely "licensed" that candy bar because there was fine print on the label? A court would be unlikely to agree. Can libraries argue that though e-books come with "a license," the library is nevertheless an "owner" with first sale rights? The answer at the moment is "probably not."

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Subcommittee on Courts, Intellectual Property, and the Internet Scope of Fair Use Hearing

The House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the scope of fair use on 1/28/14 (video).

Here's an excerpt from "Fair Use Takes Center Stage at Judiciary Committee Hearing": :

One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use. Not only is it fair, but as Professor Peter Jaszi noted during the hearing it is also tremendously beneficial, enabling the indexing and searching of huge sets of works.

Several panelists, however, pointed to the legal status of mass digitization as evidence of "fair use creep," stressing its supposed lack of "transformative" quality over the other fair use considerations. That's a mistake. Mass digitization is absolutely the sort of thing fair use is supposed to enable. Fair use is a flexible doctrine, not a rigid list of exceptions, so that it can accommodate changes in practices or technology.

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"’Safe Harbor’ for the Innocent Infringer in the Digital Age"

Tonya M. Evans has self-archived "'Safe Harbor' for the Innocent Infringer in the Digital Age" in SSRN.

Here's an excerpt:

The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, cognizable market harm.

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"This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age"

Peter S. Menell has self-archived "This American Copyright Life: Reflections on Re-Equilibrating Copyright for the Internet Age" in SSRN.

Here's an excerpt:

This article calls attention to the dismal state of copyright's public approval rating. Drawing on the format and style of Ira Glass's "This American Life" radio broadcast, the presentation unfolds in three parts: Act I—How did we get here?; Act II—Why should society care about copyright's public approval rating?; and Act III—How do we improve copyright's public approval rating (and efficacy)?

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"Digital Copyright and Public Access: Why the Knowledge Principle Dictates a Fair Access Right for Public Libraries"

Jenny Lynn Sheridan has self-archived "Digital Copyright and Public Access: Why the Knowledge Principle Dictates a Fair Access Right for Public Libraries" in SSRN.

Here's an excerpt:

This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works. This Article proposes a non-waivable "fair access" right exercisable by public libraries in order to realign copyright with its Constitutional justification, and more importantly to support the knowledge creation process for the future of our democratic society.

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"A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement"

Pamela Samuelson has published "A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement" in the Harvard Journal of Law & Technology Occasional Paper Series.

Here's an excerpt:

This Article responds to critics of the antitrust objections to the ASA [Amended Settlement Agreement] by making three main points. Part II explains that Judge Chin's incomplete and unpersuasive analysis of the antitrust objections to the proposed settlement agreement is best understood as an effort to encourage the settling parties to adopt more competitive terms in any revised settlement agreement. Part III points out that the DOJ did not reach definitive conclusions on antitrust issues posed by the ASA. The DOJ was, however, obliged to submit an interim analysis because Judge Chin wanted the government's input before he ruled on whether the settlement should be approved and the DOJ did a creditable job under the circumstances. Part IV contends that there was more merit to the DOJ's antitrust concerns about the proposed settlement than some commentators have recognized.

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Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate

The Berkman Center for Internet & Society has released Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate.

Here's an excerpt from the announcement:

In this paper, we use a new set of online research tools to develop a detailed study of the public debate over proposed legislation in the United States that was designed to give prosecutors and copyright holders new tools to pursue suspected online copyright violations. Our study applies a mixed-methods approach by combining text and link analysis with human coding and informal interviews to map the evolution of the controversy over time and to analyze the mobilization, roles, and interactions of various actors.

This novel, data-driven perspective on the dynamics of the networked public sphere supports an optimistic view of the potential for networked democratic participation, and offers a view of a vibrant, diverse, and decentralized networked public sphere that exhibited broad participation, leveraged topical expertise, and focused public sentiment to shape national public policy.

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