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The public meeting has been postponed until Dec. 12, but the public comment deadline remains the same, Nov. 13th.  The Department of Commerce is soliciting input on the Internet Policy Task Force’s green paper,  “Copyright Policy, Creativity, and Innovation in the Digital Economy,”  produced by the USPTO and the National Telecommunications and Information Administration (NTIA).

Questions from the Federal Register Oct. 3, 2013

Remixes

1. Is the creation of remixes being unacceptably impeded by this uncertainty? If not, why not? If so, how? In what way would clearer legal options result in even more valuable creativity?

2. In what ways, if any, can right holders be efficiently compensated for this form of value in cases where fair use does not apply?

3. What licensing mechanisms currently exist, or are currently under development, for remixes and for which categories of works?

4. Can more widespread implementation of intermediary licensing, such as YouTube’s Content ID system, play a constructive role? If so, how? If not, why not?

5. Should alternatives such as microlicensing to individual consumers, a compulsory license, or a specific exception be considered? Why or why not?

6. What specific changes to the law, if any, should be considered? To what extent are there approaches that do not require legislation that could constructively address these issues?

First Sale

7. What are the benefits of the first sale doctrine? And to what extent are those benefits currently being experienced in the digital marketplace?

8. To what extent does the online market today provide opportunities to engage in actions made possible by the first sale doctrine in the analog world, such as sharing favorite books with friends, or enabling the availability of less-than-full-price versions to students? 9. If the market does not currently provide such opportunities, will it do so in the near future? If not, are there alternative means to incorporate the benefits of the first sale doctrine in the digital marketplace? How would adoption of those alternatives impact the markets for copyrighted works?

10. Are there any changes in technological capabilities since the Copyright Office’s 2001 conclusions that should be considered? If so, what are they? For example, could some technologies ensure that the original copy of a work no longer exists after it has been redistributed?

11. To what extent are there particular market segments or categories of users that may warrant particularized legal treatment?

12. How will the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), impact the ability of right holders to offer their works at different prices and different times in different online markets? How will any such changes impact the availability of and access to creative content in the United States and elsewhere?

Statutory Damages

13. To what extent is application of the current range of statutory damages necessary for effective deterrence with respect to (a) direct infringement by individual file sharers and (b) secondary liability by online services?

14. Is the potential availability of statutory damages against online

services for large scale secondary infringement hindering the development of new, legitimate services or platforms for delivering content? If so, how? What is the evidence of any such impact?

15. If statutory damages for individual file sharers and/or services found secondarily liable for infringement were to be recalibrated, how should that be accomplished? Would legislation be required?

Government Role in Improving the Online Licensing Environment

16. What are the biggest obstacles to improving access to and standardizing rights ownership information? How can the government best work with the private sector to overcome those obstacles?

17. To what extent is a lack of access to standardized, comprehensive, and reliable rights information impeding the growth of the online marketplace? What approaches could be taken to improve the situation?

18. Are there other obstacles that exist to developing a more robust, effective, or comprehensive online licensing environment? If so, what are they?

19. In addition to those efforts to develop standardized, comprehensive, and reliable rights databases and online licensing platforms described in the Green Paper, are there other efforts under way by the private sector or public entities outside the United States? If so, what are they?

20. Would a central, online licensing platform for high-volume, low-value uses (a ‘‘copyright hub’’) be a useful endeavor in the United States? If not, why not? If so, how can the government support such a project?

21. What role should the United States government play in international initiatives at WIPO or elsewhere?

Operation of the DMCA Notice and Takedown System

22. The Task Force believes that at least the following issues could be  constructively addressed through a notice and takedown multistakeholder dialogue:

a. Reducing the volume of takedown notices sent to service providers;
b. Minimizing reappearance of infringing material;

c. Inaccurate takedown requests;

d. Misuse of takedown requests; and e. Difficulties in using the system for

individuals or small and medium-size enterprises (SME).

What other issues could be considered? For each issue to be considered, who are the stakeholders needed at the table?

23. How can the Task Force ensure participation by all relevant stakeholders, as well as effective and informed representation of their interests?

24. Are there lessons from existing multistakeholder processes in the realms of Internet policy, intellectual property policy, or technical standard- setting that could be applied here? If so, what are they and to what extent are they applicable?

25. In what ways could the stakeholder discussions be structured to best facilitate consensus?

 

 

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The Department of Commerce’s Internet Policy Task Force (Task Force) released its Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy (Green Paper) July 31, 2013 and now seeks public comment on copyright issues critical to remixes, first sale, cultural development, economic growth, job creation, damages, secondary liability, licensing etc.

The Task Force will have an initial public meeting on October 30, 2013 in D.C., and will consider public comments received before Oct 15.

DATES: Comments are due on or before November 13, 2013. Any comments received before October 15, 2013 will be considered in the discussions in the public meeting. The public meeting will be held on October 30, 2013, from 8:30 a.m. to 5:00 p.m., Eastern Daylight Time. Registration will begin at 8:00 a.m.
ADDRESSES: The Task Force intends to hold the public meeting in the Amphitheatre of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004.

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When we buy print books, we own them.  We don’t own the intellectual property, the copyright, but we own the print book. We can give it away, resell it, burn it. It’s ours.

When we “buy” ebooks, we rarely own them. We certainly don’t own the intellectual property, but we also don’t really have ownership of the files.  This makes library lending of ebooks truly problematic.  The libraries are paying for expensive licenses to files that can and do disappear, and that usually can’t be legally transferred from an old library ebook system to a new one.

Consumers face the problem of ebook ownership too. Even if the consumer is able to buy an ebook “file,”  he or she can’t do much with it besides read it in the original device that it enters.  They may not even be able to lend it or give it away, even if they delete their copy of the file.

Public Knowledge has just issued a thinkpiece, “Really Owning Your Stuff” that says that PK THINKS that consumers who legally own copies of works have personal property rights in those copies, just like they have property rights over other goods.  I agree. Well put.

PK points out that in the seminal Supreme Court case that determined that the user owns the print book, this language was used:   “secure to the owner thereof the exclusive right to multiply copies…”    This is an important point.  When we resell an ebook, we need to make a copy.  Yet if we delete the original, has there really been a “multiplication” of copies?  No.

 

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Theresa Hackett has alerted us that a new EIFL guide out for libraries on the EU Orphan Works Directive.  The October 2012 Directive 2012/28/EU, she says, set out common rules for digitization and online display of orphan works, but unfortunately it has not realized hopes for large-scale digitization of orphan works by libraries.

The Guide explains the background and key provisions, and it makes  recommendations for libraries to implement in EU countries, and advises libraries in countires that have bilateral agreements with the UE.

Download or browse the Guide.
Check out other EIFL resources here, http://www.eifl.net/eifl-ip-resources
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New copyright decisions – written by Justia lawyers

Here’s a sampling of recent copyright decision summaries written by Justia lawyers:

 

  • Enterprise Management Limited, Inc. v. Warrick

    May 21, 2013
    In a copyright infringement case, Enterprise Management Limited, Inc. and Mary Lippitt appealed a summary judgment in favor of Donald Warrick. Lippitt contended, contrary to the district court’s holding, she demonstrated a prima facie case of copyright… read more »

  • Righthaven LLC v. Hoehn

    May 9, 2013
    Plaintiff filed separate copyright infringement suits against defendants for posting articles from the Las Vegas Review-Journal online without authorization. In consolidated appeals, the court agreed with the district court that plaintiff lacked standi… read more »

  • Bridgeport Music, Inc. v. Smith

    May 21, 2013
    In 1974, songwriter, recording artist, producer, and performer Tilmon, composed the song “You’re Getting a Little Too Smart.” In 1976, Tilmon assigned all of his rights to the song to Bridgeport Music. In 1997, rapper Rashaam A. Smith a/k/a Esham A. Smith released the song “You & Me,” which, according to Bridgeport, unlawfully contained samples of the composition “Smart.” In 2003, plaintiffs, including Bridgeport, sued for copyright read more »

  • Cariou v. Prince

    April 25, 2013
    Plaintiff sued defendant and the Gagosian Gallery, alleging that defendant’s series of paintings and collages infringed on plaintiff’s registered copyrights in certain photographs from a book of classical portraits and landscape photographs that plaint… read more »

  • WNET v. Aereo, Inc.

    April 1, 2013
    Two groups of plaintiffs, holders of copyrights in programs broadcast on network television, filed copyright infringement actions against Aereo. Aereo enabled its subscribers to watch broadcast television programs over the internet for a monthly fee. P… read more »
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Unlocking Technology Act – aiming for a right…

As you may know, the U.S. Copyright Office had approved an allowance for consumers to unlock their cellphones, as part of a triennial Digital Millennium Copyright Act (DMCA) rulemaking process, and consumers rejoiced. Fast forward to the renewal of that exception only to find that the exception was closed up in this year’s rulemaking.

Many folks are upset about this, and a recent bill could fix the situation.  The Unlocking Technology Act would allow users to unlock their cell phones, without the need to go through the triennial hearing process.

PopVox, at the moment is running an 83% support to a 17% oppose, but with a base of less than 100 voters. What do you think?

https://www.popvox.com/bills/us/113/hr1892

 

 

 

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Public Knowledge has useful excerpts from last week’s…

Sherwin Sly, over at Public Knowledge, distills the testimony from last week’s Congressional hearing on copyright reform here. Personal note – it could be devastating for libraries if the library copyright provision is repealed. Libraries rely both on the specific exception (Sect. 108) and the general contours of Fair Use.  The specific exception allows some measure of certainty under limited conditions.

http://www.publicknowledge.org/blog/what-expect-todays-copyright-reform-hearing

 

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Copyright Principles Project – House Judiciary Committee Hearing…

Congressional recording available from the May 16 hearing on the Copyright Principles Project.  You may need to move the play button pretty far in to get to it.

Here are the details:

A Case Study for Consensus Building: The Copyright Principles Project

Thursday 5/16/2013 – 2:00 p.m.

Subcommittee on Courts, Intellectual Property and the Internet

2141 Rayburn House Office Building

Witness List

Mr. Jon Baumgarten
 Former General Counsel Copyright Office (1976 – 1979)

Professor Laura Gasaway
 University of North Carolina School of Law

Professor Daniel J. Gervais
 Vanderbilt University School of Law

Professor Pamela Samuelson
 University of California Berkeley School of Law

Mr. Jule Sigall
 Assistant General Counsel for Copyright Microsoft Corporation


Chairman Goodlatte:  This afternoon we will hear from several participants in the Copyright Principles Project who collectively have worked on or studied copyright issues for decades. They have also traveled here from all over the United States and I thank them for their willingness to be here today.Watch Webcast

By Direction of the Chairman

Statement of Judiciary Committee Chairman Bob Goodlatte Subcommittee on Courts, Intellectual Property and the Internet Hearing on “A Case Study for Consensus Building: The Copyright Principles Project”

Statement of Judiciary Committee Chairman Bob Goodlatte
Subcommittee on Courts, Intellectual Property and the Internet
Hearing on “A Case Study for Consensus Building: The Copyright Principles Project”

Copyright is a fundamental economic principle enshrined in our Constitution. It has become a core part of our economy and society in ways the framers of our Constitution could never have imagined. The ways in which creators could express themselves when the Constitution was written were very limited. Photography, musical recordings, film, and software did not arrive for decades, if not centuries, afterwards. Even many of these creations have changed significantly as digital technologies made the creation of content more diversified. Digital technologies have also enabled wider distribution to occur -local artists can have a global reach. The passion and skills of our nation’s creators have enhanced our society and culture. Creators deserve our support and respect.

Despite rapidly changing technologies and business models since the enactment of the 1976 Copyright Act, there appear to have been few efforts to bring together parties from different perspectives to discuss how the 1976 Act has worked as technology and business models evolve. There have certainly been short-term events where interested parties spoke for a few minutes each about the latest technology or the latest court decision. What has been lacking is something broader in perspective.

What impressed me about the Copyright Principles Project was not its report or even on what issues its participants were able to agree or disagree. In fact, the Committee does not endorse the specific recommendations and findings of the report. However, we do want to highlight that its participants with strongly held views on copyright law, many of which were in direct opposition to each other, committed to spending three years together in an effort to productively discuss copyright issues. The Committee has invited five of the participants here today as an example of how people with divergent views on copyright law can productively debate a range of copyright issues. Their written testimony highlights the fact that they are all here this afternoon, certainly not speaking with one voice, but speaking with a recognition that the person next to them at the witness table has just as much right to advocate their position on copyright law as they do.

This Judiciary Committee is no stranger to policy issues on which opinions vary widely. This hearing room has, and is continuing, to debate numerous policy issues in which there are sharp disagreements. There were of course sharp disagreements on the 1976 Copyright Act that we use today and whose hearing record in the Committee journals is before me.

Since announcing my interest in a comprehensive review of copyright law several weeks ago, a variety of interested parties began identifying their specific areas of interest that they wanted to see reviewed. I appreciate their input and I look forward to working with all interested parties. We should not be in a rush to focus on specific issues without first recognizing the fundamentals of copyright and the social and economic benefits that copyright brings to our economy. It is my intention to conduct this broad overview by hearing from everyone interested in copyright law as we begin by holding hearings on important fundamentals before we begin to look at more specific issues.

There are numerous questions that will be raised by interested parties during this review. I have several myself including:

How do we measure the success of copyright and what metrics are used?
How do we ensure that everyone’s voice is heard?
How is copyright working for individual artists?
How is copyright working for our nation’s economy?

These are only a few of the issues we will be looking into. This review of copyright law will not be a quick process simply because the issues are so numerous. However, we must undertake this review to ensure that copyright law continues to incentivize creativity and innovation in the digital age.

 

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You probably know that the Register of Copyrights testified before Congress last month that we need a new copyright act.  [See The Register’s Call for Updates to U.S. Copyright Law Subcommittee on Courts, Intellectual Property and the Internet (3/20/13) Related Lecture  View Webcast Part 1 | Webcast Part 2]

You probably have also noticed the erosion of First Sale as we live more and more in the land of digital. Witness the Redigi decision that said that even if you forward and delete, you can infringe copyright. That’s because you need to make a copy for sending before you delete your original.

You may also live in the real world where everyone is remixing digital content, yet the uncertainty that accompanies these creative efforts can be stifling to those that are aware of copyright penalties.

To that end, it is important to speak out and say what you need in the Next Great Copyright Act. Read the short petition below, and if you agree with it, sign it. If you know of communities that would sign, please forward. There’s a short deadline to get this out by May 14th.  If you don’t have a White House account, you can create one very easily.

http://tinyurl.com/recastcopyright

WE PETITION THE OBAMA ADMINISTRATION TO:

Recast copyright law for the digital era. It’s time to regain public respect with laws that make sense.

The public disregards copyright law because it is out of sync with the digital age. We want the right to resell digital content (ebooks, etc.) that we’ve paid for. We need transparency in the marketplace to understand what rights we have.

Additionally, as responsible creators we need to be able to freely remix existing music and other forms of creative expression to create new works without undue fear of prosecution. This upholds the original Constitutional purpose of copyright, which is to promote progress.

This will nurture the process of innovation and the sharing of our culture. The language of the existing copyright law must be changed to accommodate the way information is being created and consumed in our digital world.