Articles Tagged with Copyright

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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.

Robert Brauneis, Abraham L. Kaminstein Scholar in Residence, U.S. Copyright Office

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.

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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.


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.

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Even very popular government mandates have opponents, and the National Institutes of Health’s (NIH) Public Access Policy certainly has its critics.

According to the agency, “The NIH Public Access Policy implements Division G, Title II, Section 218 of PL 110-161 (Consolidated Appropriations Act, 2008). The law states:”

The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

Critics of the policy are making a move, yet again, to eviscerate it.

Last month, Representatives Darrel Issa (R-CA) and Carolyn Maloney (D-NY) introduced The Research Works Act, H.R. 3699. The bill is currently referred to the House Committee on Oversight and Government Reform (which Rep. Issa chairs).

The Association of American Publishers lauds the bill, which it describes as

… [prohibiting] federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding. It would also prevent non-government authors from being required to agree to such free distribution of these works. Additionally, it would preempt federal agencies’ planned funding, development and back-office administration of their own electronic repositories for such works, which would duplicate existing copyright-protected systems and unfairly compete with established university, society and commercial publishers.

(Emphasis mine)

Evolutionary biologist and Public Library of Science co-founder Michael Eisen has done some research, finding that 12 of Reed Elsivier’s (and their senior executives) 31 political contributions for 2011 went to Rep. Maloney, co-sponsor of the bill, totaling $8,500. He also argues that while the bill refers to “private-sector research work,” the definition of such in the bill encompasses research products that receive funds from government agencies, thus invalidating the NIH Public Access Policy.

Some Blogosphere reactions to the bill include:

SOPA and the Research Works Act: Evil master plan or do publishers think so little of us? from Library Attack

Representatives Issa (R-CA) and Maloney (D-NY) introduce anti-open access legislation from Knowledge Ecology International

Congress Considers Paywalling Science You Already Paid For
Congress wants to limit open access publishing for the US government’s $28B/year subsidized research from BoingBoing

Why Is Open-Internet Champion Darrell Issa Supporting an Attack on Open Science? from The Atlantic Online

Scholarly Societies: It’s time to abandon the AAP over The Research Works Act from Confessions of a Science Librarian

New bill to block open access to publicly-funded research from Peter Suber

The Alliance for Taxpayer Access, an Open Access advocacy group, already has a Take Action page, asking supporters of the NIH Public Access Policy to call Reps. Issa and Maloney, as well as other members of the House Committee on Oversight and Government Reform.

We at Fairly Used will continue to look for news and reactions to this bill.

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Copyright and controversies over its enforcement by no means limited to the United States. The world’s first copyright legislation was England’s Statute of Anne, enacted in 1710. The Berne Convention for the Protection of Literary and Artistic Works, the first international copyright agreement, was first written in 1886.

And while debates over copyright enforcement, length of protection and the extent of exemptions continue in the U.S., similar efforts and arguments are being made in Canada, the UK and Europe. Our video page has excerpts from the ongoing conversation. One highlight is a speech on copyright from Mathias Klang, a researcher and senior lecturer at the University of Göteborg in Sweden. Most of the latest videos are from a July 2010 conference called ORGCon, conducted by the Open Rights Group, a group devoted to advocating digital rights in the UK.

But for you hardcore Lawrence Lessig fans (and I am one, thank you very much), there’s also a new TED talk from him on copyright, fair use and remix culture mashed up with politics. Brief, but humorous and thought-provoking, as one would expect from Prof. Lessig.

   — Eli Edwards, Content Minion

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An Insider’s View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA’s strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on “Why WIPO? Why International Copyright Matters.” We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow:
How did you find yourself before WIPO in June, representing library, and by extension, the public’s interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

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For background, see Jonathan Pink interviews: District Court Invalidates Portion of Copyright Act as Unconstitutional; Holds State University and Employee Immune From Claim for Copyright Infringement (April 15, 2008) and Follow up questions on state university copyright immunity case – Marketing Information Masters v. Trustees of the California State University (April 23, 2008)

Minow: Can you tell us about the settlement in the Marketing Information Masters case?

Pink:  Sure. The parties ultimately settled for $15K.  The settlement was negotiated by my former partner because I moved firms just after filing the final motion that led to the court knocking out nearly everything that remained after we invalidated Section 511 of the Copyright Act.  I had given the school a really low rate at my old firm, and unfortunately I could not keep them at that rate after the move, so I had to hand the case off.  Nonetheless, I teed it up for settlement before I left by obtaining the court-ordered dismissal of nearly every claim, and by limiting plaintiff’s possible win to about $5,000.  Even though the final settlement was 3X that number, and I think the school over paid, my client wanted to be done with the law suit and what they paid in settlement they saved in fees. Overall, still a good result.

Minow: Why such a low settlement?

Pink: Ultimately, the reason the settlement was so low all tracks back to the ruling you first wrote about, and then a follow up motion we filed that knocked out still more claims.  That is, first we invalidated the plaintiff’s right to sue a state university for copyright infringement and assorted other claims, then we drastically whittled down the claims this plaintiff asserted against Professor Rauch .  After that, the facts in this case simply did not support big damages.  We were able to show that plaintiff never made more than $15,000 when it previously sold its report to the school, and it didn’t lose the sale of report at issue because the plaintiff had refused to prepare that report for the school unless they were paid a lot more money.  Bottom line was that I thought we could have shown almost no damages, so we made a statutory offer of about $5000.  When the plaintiff failed to accept that offer, he was stuck because, unless he was able win more than that at trial, he would have ended up paying our attorneys fees.  It was a gamble, but I thought we were holding the better hand.  Although I wasn’t involved in the final settlement talks because I moved firms, I understand that these tactics – and my former partner’s negotiating skills – allowed the client to close the case for nearly nothing.

Minow: Now here’s the key question. Can individual professors be held liable for copyright infringement even when they follow university copyright policies?

Pink:  That is the key question, but because this case never went to trial, we can’t answer it with certainty.  The qualified answer is probably not, but it will be a question of fact as to whether the professor followed the university’s copyright policies.  In this case, the facts giving rise to the claim for infringement arose out of the conduct of an intern who was a visiting foreign student.  The professor never knew that the student had copied text, and moreover, went of his way to correct that once it was brought to his attention.  Of course, there is an argument that he should have known by more closely supervising the work.  So did he follow the copyright policy of the university sufficiently to avoid liability?   We don’t know.  But it was worth $15K not to put that question to the test.


Jonathan Pink is a member of the Intellectual Property Group at Bryan Cave , LLP.  His practice focuses on high stakes copyright, trademark, trade secret and patent litigation.  He can be reached at

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The Stanford Copyright & Fair Use page just added a new tool to its Charts and Tools page, the “Section 108 Spinner.”

Minow: Tell us about the new Section 108 spinner. How does it work and what is its purpose?

Brewer: The “Section 108 Spinner” was actually the first tool we created, but because at that time the Section 108 study group had still not released their findings, we held off on releasing this tool and instead developed and released the “Digital Copyright Slider” first.  Once it seemed clear that Section 108 was not going to change any time soon, we decided to go ahead and release the Spinner. The Spinner is focused more on educating and serving the needs of librarians, library staff and archivists.  Basically it is there to help them determine when a reproduction of a copyrighted work would be covered by Section 108, the Library and Archives exemption in US Copyright Law.  We are focused on promoting the online tool, but we do have some copies of the print tool that we’re handing out at conferences or other events.  If we hear from people that having access to the print tool would be valuable for their institutions (for their staff in ILL, Special Collections, Collection Management, Public Services, etc.), we might consider making the print tool more broadly available as well.

Minow: Do you have anything else up your sleeve?

Brewer: We’ve got two more tools in development.  One is a “Fair Use Evaluator” which will guide users through the process of making fair use evaluations.  The tool collects the evidence and reasoning behind the justification provided by the user, and then provides this information back to them in a nicely formatted, time stamped PDF file for their records.  Because Section 504(c) of the US Copyright Code affords some legal protection from statutory damages for those who can show that they made a good faith evaluation of their use and had reasonable grounds for believing it was fair, we feel this feature could be especially valuable.  The second is an Educational Exemptions tool that will help instructors determine whether or not their use of a copyrighted work falls under Section 110 and 110(2) [the “face to face” teaching exemption and the TEACH Act], which allow for educational uses of copyrighted works without the permission of the copyright holder under certain circumstances. We’ve found that there is a lot of confusion out there concerning this portion of the law, so we thought an easy to use online tool might help. This tool can also collect and publish, in PDF format, the circumstances of the use provided by the user.  We hope to have these two tools out by ALA Annual in July.


Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

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Minow: Tell us about the new Digital Copyright Slider. How does it work and what is its purpose?

Brewer: The “Is it Covered by Copyright?” Slider was created as the first in a series of simple tools to help librarians, educators and others with their copyright questions.We first created a print version as a slide chart, but realized that a digital version could be much more useful, though perhaps not as fun to play with. Thus, the digital version was born.Both versions of the slider help the user to determine whether or not a work is in the public domain in the United States , and, if not, what the period of protection is.

Our next tool, a Section 108 “spinner” (library/archival reproductions for preservation, replacement or for users) will be released shortly both in print and online, so stay tuned.

Minow: What is the American Library Association Office for Information Technology Policy Copyright Committee?

Brewer: The American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee promotes copyright education programs and initiatives and advises the OITP copyright specialist. We meet twice a year at ALA annual and mid-winter. Our meetings are open to any interested ALA members.Many members are actively involved in the Copyright Advisory Network at

MichaelBrewer.jpg Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee. 

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Minow:What recommendations by the Section 108 Study Group would really help libraries, museums and archives if adopted into law?
Hirtle: Most of the recommendations from the group could help libraries, archives, and museums, but four stand out to me.
First, the report argues that at least some museums should be included in the section.That is not currently the case.
Second, the report proposes that there be a broad preservation exemption for published materials.It is possible that having explicit permission to preserve in Section 108 might reassure some libraries that are reluctant to preserve under the more ambiguous provisions of fair use.
Third, the provisions that grant libraries, archives, and museums explicit permission to do some of the things that the Internet Archive does under the umbrella of fair use may also be helpful.
Lastly, the recommendations address many of the absurdities in the current law.Here are two examples:
*Under current law, if a library made a replacement copy of an audio CD, it would no longer be able to loan that CD to its patrons (because digital replacement copies are restricted to the premises of the library – and audio CDs are digital).
*Certain preservation and replacement provisions limit the library to making three copies.This makes sense when you are talking about microfilm, but doesn’t make much sense when you are dealing with digital copies.
Minow: Anything that could hurt libraries, museums and archives?
Hirtle: There is always the danger that providing explicit permission for certain actions could imply that other actions outside the scope allowed in the section are suspect.Section 108 should never be a ceiling on what is acceptable except in those cases where it goes beyond what other sections, such as fair use, would allow.
The biggest threat will occur when 108 is opened for legislative amendment.The Study Group received proposals from many interest groups that would be very problematic for libraries, archives, and museums.I am thinking in particular of the suggestions that international ILL be banned and that libraries would need to determine if an article was available for sale from the publisher prior to making an ILL request.Most libraries would welcome the opportunity to purchase copies of articles from publishers rather than having to go through the ILL system if the cost was roughly comparable, but few I suspect would like to have it as a legal requirement.While these recommendations were not included in the final report, interest groups that know how to work the system may try to add them to 108 during the legislative process.
Minow:Tell us about the process the Committee went through. Was there screaming?
Hirtle: No screaming, though there were often strong differences of opinions.I was particularly impressed by the participation of the rights holders.It would have been very easy for them to have turned their back on the whole process and not consider at all any expansion of actions that could be interpreted as infringing on the exclusive rights of the copyright owner.They, however, recognized that the preservation and the maintenance of the historical record are very important and worked hard to try to identify those areas where libraries, archives, and museums could take action in a manner that would not hurt their interests.The future markets for digital delivery are so uncertain, however, that it was difficult to reach agreement on broad terms – there was an understandable fear of possible unintended consequences of any change to copyright law.
In the end, the 108 process for me confirmed Jessica Litman’s conclusions from her study of previous copyright revisions.Negotiated agreements among current stakeholders, she noted, while producing legislation that can be implemented, are unlikely to produce statutes that are flexible enough that they improve with age.
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Hi Friends,

The state of Oregon has claimed copyright on the Oregon Revised Statutes and sent a cease and desist letter to Justia, with a threat of litigation if they were not removed or licensed. You can read more about this on the Justia Blog “Cease, Desist & Resist – Oregon’s Copyright Claim on the Oregon Revised Statutes” as well as Tim Armstrong’s post “Can States Copyright Their Statutes?” on Info/Law and William Patry’s post “Oregon goes wacka wacka huna kuna” on the The Patry Copyright Blog and Sam Bayard’s post “Oregon Claims Copyright in Its Statutes — Well, Sort Of” on the Citizen Media Law Project Blog. And there have been a additional posts on other blogs.
We are talking with Oregon early next week and will let you know how it goes. 
Onward & Peace,