Justia has made the full docket of legal filings in the Happy Birthday case available for free online at https://dockets.justia.com/docket/california/cacdce/2:2013cv04460/564772
Existing copyright policy is based largely on the utilitarian theory of incentivizing creative works. This Article looks at content production incentives in the online adult entertainment industry. A recent trend of industry-specific studies tries to better understand the relationship between intellectual property (IP) and creation incentives in practice. This Article makes a contribution to the literature by analyzing a major entertainment content industry where copyright protection has been considerably weakened in recent years. Because copyright infringement is widespread and prohibitively difficult to prevent, producers have been effectively unable to rely on the economic benefits that copyright is intended to provide.
Qualitative interviews with industry specialists and content producers support the hypothesis that copyright enforcement is not cost effective. As a result, many producers have developed alternative strategies to recoup their investment costs. Similar to the findings of other scholarly work on low-IP industries, this research finds a shift toward the production of experience goods. It also finds that some incentives to produce traditional content remain. The sustainability of providing convenience and experience goods while continuing content production relies partially on general, but also on industry-specific factors, such as consumer privacy preferences, consumption habits, low production costs, and high demand. While not all of these attributes translate to other industries, determining such factors and their limits brings us toward a better understanding of innovation mechanisms.
[UPDATE from Peter Hirtle: That didn’t take long. The authors of the handbook have responded to my specific issues below by updating and/or correcting the handbook. A new version is available at http://www.law.berkeley.edu/files/FINAL_PublicDomain_Handbook_FINAL(1).pdf. A very good resource has become even better.]
Stanford Copyright and Fair Use Center Advisory Board Member Peter Hirtle reviews Is it in the Public Domain?
It is very difficult to determine whether works are in the public domain in the United States. That is why I had to create my duration chart as an aide–mémoire: any time I tried to remember the various options, I got them wrong. It is also why I felt compelled to write an article highlighting some of the traps lurking within the seeming clear-cut categories. And it is why Stephen Fishman needs 700+ pages in his legal treatise, Copyright and The Public Domain. Continue reading →
The Samuelson clinic has put together what looks like a useful, thorough new handbook to help you determine if a work is in the public domain. http://www.law.berkeley.edu/files/Final_PublicDomain_Handbook.pdf
Most helpful is the complete FLOW CHART. We’ll put both the handbook and the flowchart in our CHARTS AND TOOLS section for your hand reference. http://www.law.berkeley.edu/files/Final_PublicDomain_Flowcharts(6).pdf
The flawed copyright system has an impact on creative economy. Copyright’s influence on digital opportunities in the UK’s creative economy provided impetus for broad scale initiatives for improvement. Audience expectations have changed dramatically. #mediaxfocpod
mediaX connects businesses with Stanford University’s world-renowned faculty to study new ways for people and technology to intersect.
The U.S. Copyright Office came to Stanford Law School yesterday to conduct a roundtable on Recordation Reengineering, The Stanford Law School Law and Policy Lab submitted comments and a thoughtful White Paper, and live tweeted the proceeding along with us (see @slspolicylab and @fairlyused). The Law and Policy Lab was represented at the roundtable by Peter Holm, third year law student. We interviewed Peter to get the essence of the issue and the White Paper, which is available as document 23 on the Copyright Office comments page.
The roundtable was conducted by Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office.
The White Paper was submitted to Brauneis by Ariel Green, Sean Harb, Peter Holm, Kingdar Prussien, Kasonni Scales, and Juliana Yee, Copyright Policy Lab Practicum
Mary Minow: What was the impetus that led Stanford to research and write this White Paper?
Peter Holm: The Copyright Office contacted Stanford initially and Professor Paul Goldstein contacted us. I took a copyright class in the Fall of 2012 with Professor Goldstein. He emailed a few of us over the summer to see if we were interested. He described it as a chance to offer concrete suggestions to modernize the Copyright Office operations.
Minow: That sounds broad. When did the focus narrow to copyright document recordations?
Holm: That narrower focus developed in the Fall as we spoke with Maria Pallante, Register of Copyrights; Jacqueline Charlesworth, General Counsel, United States Copyright Office, and then with Professor Bob Brauneis who is there as a scholar in residence on these issues.
Minow: Why does this matter?
Holm: To have economic value, an owner of copyrighted works has to be able to sell and make his works available. If you don’t know who the owner is, you can’t make those transactions and the works lose value, so availability of this information is integral.
Minow: How do people find out now about who owns what copyrights?
Holm: It varies by industry. Neither registration of copyrights nor recordation of copyright transfers are required, but both have benefits to the owner. Because taking these steps is voluntary, the amount of information available for any given work varies considerably. So for example, in the music industry, there is extensive ownership information and licensing availability through ASCAP, BMI and the Harry Fox agency. So if I want to play Elton John at a party open to all Stanford students, I can get a license from those collecting societies and not worry about who owns the rights.
Whereas if I find a book in the library, published in 1955 and I want to use it, it’s harder to find information. There are probably records at the Copyright Office for the initial owner, as registration used to be required, but subsequent transfers might not have been recorded, so many questions remain. Did he transfer the copyright at some point? If not, is the author still alive? Did it go to his heirs, and who are they?
There is a substantial cost to investigating this, and often one doesn’t know who to talk to.
Minow: What’s the gist of your proposal?
Holm: It’s not a proposal per se. It’s really a list of options and tradeoffs. We look at the role of the copyright office. Should it hold a giant database, partner with third parties? Really it comes down to how do we best provide access to the public and get the information they need without overly burdening authors with unnecessary requirements? We don’t want to make it too hard for them to exercise their rights to transfer works, since transfers are potentially beneficial.
Minow: What are the benefits of recording transfer documents, since it’s not required?
Holm: It gives constructive notice of the transfer. Also, if you record a transfer document there is a presumption of validity for that document over subsequent instruments of transfer of the same title.
Minow: Thanks for talking with us today.
Peter Holm is a third year law student at Stanford Law School.
Mary Minow is the Executive Editor of the Stanford Copyright & Fair Use page.
ORPHAN WORKS is red hot again. After a number of failed legislative attempts and a couple of high profile court cases, its back to the drawing board, albeit a better defined drawing board. On the one hand, most everyone agrees that for true orphans, it would be great for us all to be able to digitize, copy, adapt, distribute and otherwise use them. On the other hand, how do we know it’s a true orphan? What if there is an “orphan” owner?
The Copyright Office just held two days of public roundtables on Orphan Works (See twitter #orphanworks for some flavor of the sessions). The Copyright Office has now opened up the floodgates for public comment from those of us who were not in D.C. Continue reading →
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
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?
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?
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?
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.