Copyright

If you haven’t read about it, the New York Times reported yesterday that: Microsoft May Build a Copyright Cop Into Every Zune. Essentially, the large content provider would withhold their content from a distributor unless the distributor put in effective measures to prevent against piracy. We’re not talking about DRM here, we’re talking about filtering software, whether it resides on the playback device like a Zune or iPod, or in the software on a syncing computer that stores the consumers’ library of music and movies like the Zune or iTunes software. This software would troll your library checking for content that was somehow infringing or unauthorized. It may even be spyware that could report back to someone about the contents of your media library.

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The House and Senate both introduced new legislation to allow for greater use of so-called “orphan works” — books, music, photos, movies or other works whose owners can’t be found. Why are these bills important? Because there are literally millions of works in existence that are currently under copyright protection but for which the copyright owner cannot be easily found. Because if you use a copyrighted work without permission, you could be on the hook for statutory damages of up to $150,000 per work, orphans go unused.

Think of a diary kept by someone during the second world war and recovered from an attic. Think of a box of old photographs happened upon at a yard sale. Think of an illustration used in an advertisement but not clearly attributed. At the moment, these works are unavailable to publishers, filmmakers, collage artists and many other creative professionals who would like to use them and gladly pay for the privilege, but can’t because of the potential for massive penalties if the original copyright owner does emerge.

The newly introduced bills allow artists to use orphan works as long as that user makes a diligent effort to find the original copyright owner. In the unlikely event that the original owner does emerge, the compensation that a user pays should be reasonable. The two bills currently on the table — S. 2913, the Shawn Bentley Orphan Works Act of 2008 (PDF link) and H.R. 5889: The Orphan Works Act of 2008 (PDF link) — go a long way to address these issues and if passed, would grant the public access to millions of previously inaccessible works of art.

These Bills are being considered in there respective committees this week. We need you to write letters and call your Members of Congress to ask for them to support the bills and make a few tweaks.

The producers of World of Warcraft may not like gamers using automated “bots” to play the game, but the company can’t ban the practice under copyright law, Public Knowledge has told a federal court in Arizona.

In a brief filed Monday (May 5) with the U.S. District Court in Arizona, Public Knowledge said that Blizzard Entertainment, which produced the game, misinterpreted copyright law in its suit against MDY, which produces the “Glider” software that plays World of Warcraft while the owner is not even at the computer. Blizzard claims Glider infringed on the game’s copyright, arguing that by breaking the rules in a license agreement, the players are violating copyright each time they load the game into computer memory in order to play it.

Today, PK asked a federal court in Arizona to accept our “friend of the court” arguments in MDY v. Blizzard, a case pitting distasteful gaming behavior against an unsavory over-assertion of copyrights.

The basic details behind the story are here.

MDY, Inc. makes a program called Glider that plays World of Warcraft automatically. Players using Glider can gain experience points in WoW while not at their computers. This causes a number of gameplay issues for Blizzard, the makers of WoW. It also violates their Terms of Use (“TOU”), which are incorporated into their End User License Agreement (“EULA”).

So Blizzard sues MDY. Ok. For copyright infringement. Less Ok. Here’s why.

Earlier today, the House Judiciary Committee approved HR 4279, the Pro-IP bill, which would increase penalties for violations of intellectual property laws, among other items.

The following is the statement of Gigi B. Sohn, president and co-founder of Public Knowledge:

“We are pleased that the Committee amended the bill (HR 4279) to make clear there has to be a ‘substantial connection’ between property to be seized, such as a computer, a car or a house, and any violations of the copyright law. Now that the Committee has approved the bill, we look forward to legislative action on Orphan Works legislation, (HR 5889), that would work to restore balance in copyright law.”

Contacts:

• Art Brodsky (PK): 202-518-0020 (o) 301-908-7715 (c) abrodsky@publicknowledge.org
• Tania Panczyk-Collins (APTS): 202-654-4222 (o) 773-220-9513 (c) tpanczyk@apts.org

Public Knowledge, the Internet Archive, Association of Public Television Stations and the Association of Research Libraries joined today to praise the work of Senate and House legislators for introducing legislation that would allow for greater use of “orphan works.” Those are books, music, photos or other works for which the copyright holder can’t be found by someone who wants to use the work in a way that normally would require permission.

Works can become “orphaned” for a number of reasons: the owner did not register the work, the owner sold rights in the work and did not register the transfer, the owner died and his heirs cannot be found. The U.S. Copyright Office found in January, 2006 that that the “orphan works problem is real and warrants attention.”

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and former panel Chairman Orrin Hatch (R-UT) introduced the Senate’s version, S. 2913. House Intellectual Property Subcommittee Chairman Howard Berman (D-CA), introduced his chamber’s bill with Judiciary Committee Chairman John Conyers, Jr. (D-MI), senior Committee Republican Lamar Smith (R-TX) and ranking Subcommittee member Howard Coble (R-NC).

Two orphan works bills were introduced to begin to bring balance back to copyright law—to help find owners and encourage new and creative uses of unexploited copyrighted works. Both the U.S. Senate and House of Representatives have introduced orphan works legislation (S. 2913, the Shawn Bentley Orphan Works Act of 2008, H.R. 5889: The Orphan Works Act of 2008), rooted in the same language based on the previous Smith Bill, which was based on the Copyright Office’s recommendation. It’s been a long time coming and from working with staff, I know they’re very happy to have the bills finally introduced. Reps. Howard Berman (D-CA),Howard Coble (R-NC), John Conyers (D-MI), Lamar Smith (R-TX), (Chairman and Ranking Members of House Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property and Full Judiciary Committee Chairman and Ranking Member respectively) and Sens. Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and their incredible staff members are to be congratulated for working to address concerns of both the user and owner communities.

Title: A bill to provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

The full text of this bill is available on Thomas.

Title: To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

The full text of this bill is available on Thomas.

The Great Hall
New York City Bar Association
42 W. 44th Street
New York, NY

On Tuesday, April 29th, the Art Law Committee of the New York City Bar Association, the College Art Association, ARTstor and Creative Commons are cosponsoring a public program titled: Who Owns This Image? Art, Access, and the Public Domain after Bridgeman v. Corel.

For more information on the program please visit: http://creativecommons.org/weblog/entry/8208