On today's podcast, Public Knowledge's VP of Legal Affairs and resident copyright expert Sherwin Siy breaks down a big week in copyright reform! Sherwin discusses three major court decisions on copyright--involving a dancing baby, the Happy Birthday song, and the Batmobile--and talks about why the monkey selfie debate is back in the news.
On Monday, the 9th U.S. Circuit of Appeals held that, yes, you can be sued if you tell an online host to remove content that was a fair use. The case, Lenz v. Universal, stemmed from the notorious “dancing baby” takedown, in which Universal Music sent a takedown notice to YouTube because Stephanie Lenz uploaded a home video of her toddler dancing to a Prince song.
On Wednesday, we filed an amicus brief in the 9th Circuit Court of Appeals, asking the court to overturn a district court decision for Flo & Eddie against Pandora. Flo & Eddie, the company that owns the rights to The Turtles’ albums, has sued streaming service Pandora, saying that Pandora needed to get a license to play their records.
In the tech policy world, there’s a tendency to assume that changes to industries and markets come from technology. The focus is on the new gadget (or vastly cheaper or more reliable version of it) that upsets existing ways of doing things. For instance, the advent of cheap CCDs led to ubiquitous camera phones, changing the way most of us buy and use cameras. Film has become an exception rather than the rule; purpose-built digital cameras have to aim for a more dedicated market; even museums have changed how they present themselves.
Last week, Public Knowledge filed an amicus brief in lawsuit between the company Flo & Eddie, which owns the rights to The Turtles’ records, and satellite radio company XM Sirius. In the brief, we argue that a New York district court wrongly assumed that Flo & Eddie had the right, under state law, to sue Sirius XM for airing the tracks without paying them.
Last week, the House Judiciary Committee issued a press release on its website related to its voting on an immigration bill. While others debate the merits of the bill itself, what seemed to capture people’s attention was the release’s extensive use of animated reaction gifs, consisting of clips taken from copyrighted works.
As EFF has noted, a troubling bill has been making its way through the Florida state legislature. The bill, with versions in both the state House and Senate, would require anyone "dealing in...the electronic dissemination of commercial recordings or audiovisual works" to post their "true and correct name, physical address, and email or telephone number" on their site.
The hot takes on the Blurred Lines copyright infringement suit are out, and you may have already seen them. The verdict is “bad news for music;” it’s “legally and musically…a disaster;” its particular use of experts in trying to draw the legally necessary distinction between the musical composition and the sound recording was a complete mess. I read these and nodded along with their analysis, for the most part. But a further, nerdy question still burned:
Today Public Knowledge filed a slew of comments with the Copyright Office. As we described earlier, part of the Digital Millennium Copyright Act makes it illegal for anyone to break digital locks placed on copyrighted material – even if their eventual use of the material is perfectly legal. Fortunately, every three years the Library of Congress (with the help of the Copyright Office) is required to grant exemptions to this law for cases where the law is interfering with otherwise legal and beneficial activities.
Every three years, we have a particular chance to change the law. Part of the Digital Millennium Copyright Act makes it illegal for anyone to break digital locks placed on copyrighted material—even if their eventual use of the material is perfectly legal.
Several outlets are reporting that the MPAA’s policy efforts have, over the past years, continued, post-SOPA (Stop Online Privacy Act), to focus on different theories of site blocking. With Congress wary of passing new legislation that could lead to private online censorship, the movie industry is apparently shopping around for other forums in which to press its site-blocking agenda.
You may recall the strange affair of the monkey selfie, which resurfaced this past summer with the release of Wikimedia’s transparency report. A little after that story became news, I wrote a blog post to make a point about the photo’s authorship, and something people were getting wrong in their analysis. Yesterday, we received this email:
Cable and internet service provider Cox Communications was sued last week on the grounds that its customers have been torrenting music illegally. Cox is far from unique in this; it’d be hard to imagine any internet provider (including the federal government) not having some customers infringing copyrights. The reason we don’t see such suits all the time is because of the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).
One of the constant concerns we’ve had with the IP chapters of the Trans-Pacific Partnership Agreement is that it contains language suggesting that temporary electronic copies infringe copyrights. Considering that just opening a digital file necessarily makes temporary electronic copies of it, that’s a dangerous thing to leave lying about in a trade agreements that’s supposed to be setting standards for copyright laws.
It’s a basic fact of copyright law that you can’t copyright methods or procedures for doing things. You might be able to copyright particular expressions for things—like an evocative description of how to combine and prepare ingredients in a recipe—but you can’t copyright the basic facts behind it—the ingredients, their amounts, and the order in which you combine them.
Hack A Day is reporting that a recent Windows update destroys knockoff FTDI chips. More from Ars Technica here. The chips at issue let USB devices send and receive data to systems with older serial ports. As such, they’re in countless different devices, from hobbyist products like Arduino to off-the-shelf consumer electronic devices.
Last Friday, Google released an updated report on how it combats copyright infringement on the Web. One of the issues that much of the press has focused on is the fact that Google tweaked its search algorithm to downrank search results from sites that have been the target of valid (as judged by Google) DMCA takedown notices.
On Monday, the Digital Reader revealed (confirmed in detail by Ars Technica here that Adobe’s ebook reader, Adobe Digital Editions, was reporting the reading habits of its users, and the contents of their digital libraries, to Adobe.
Last Wednesday’s copyright hearing in the House IP Subcommittee may have borne the soporific title of “Chapter 12 of Title 17,” but the debate involved was lively. The titular Chapter 12 involves the anticircumvention provisions of the Digital Millennium Copyright Act (“DMCA”), the source of the crisis over phone unlocking.
On Wednesday, Public Knowledge joined Electronic Frontier Foundation, Consumer Electronics Association, and Engine in filing a friend of the court brief in the Supreme Court supporting Aereo, a company that is giving customers the ability to view broadcast TV online. It does this by renting miniature antennas to individual users, and sending the broadcast signal they receive over the Internet to those users.
It's Copyright Week! From today through Saturday, a number of groups
around the Web will be exchanging ideas, information, and actions about
how to fix copyright law for the better. Each day will be devoted to a
different aspect of copyright law. For more on Copyright Week, see here.
Today's focus is on how copyright law balances the rights of someone who wrote a copyrighted work and someone who bought a copy of it. This post looks at how fine print can throw that balance out of whack.
Today, the Supreme Court decided it will hear a case that could determine the future of many online computing services, with additional implications for the video marketplace.
Today, the Supreme Court decided it would review the Second Circuit's decision that online service Aereo was not infringing copyrights in television programming. In April of last year, the appeals court in New York held that Aereo was not violating the copyright holders' public performance right when it transmits over-the-air broadcasts to individual users on the Internet.
A new service called Legitmix lets remixers make new tracks out of old ones—without relying upon permission or fair use. It could easily boost sales of the original songs used in the mixes. But will it escape being sued?
Let’s get something out of the way: making a mixtape likely infringes copyright. In other words, if I want to give my friend a mix CD that contains her favorite tracks from 2013, I’m making reproductions of copyrighted works. Never mind that it’s basically harmless (and an accepted and celebrated part of our pop culture history), I’d have an uphill battle in court arguing that it’s a fair use. Luckily, today's technology lets me do something remarkably similar without infringing any copyrights.
Today's copyright hearing will be talking about consumer
expectations with media. But these expectations are more than just what we want
out of commercial media; they're based upon how we own our personal property
and live our lives.
Today at 1:30, the House IP Subcommittee is holding a hearing on new ways of delivering media and how consumer expectations have changed in
the decades since the Copyright Act was last significantly amended.
One of the big differences is that we use things as
information and not objects. Instead of having a physical photo album that I
pull off a shelf and pass around to my bored friends, I move data in an image
format from my camera to my computer, and from my computer to cloud storage or
to my friends. Instead of carting a half-typed sheet of papers (or even a
floppy disk) from home to the office, I send a text file from one computer to
This is not, for anyone in the 21st century,
riveting stuff. It's humdrum, everyday, boring. It's just how we do things. If
my friend, a semi-pro photographer, sends me a picture he took, he doesn't care
that I might get it on my phone, my home computer, my laptop, or that it might
display as part of a screensaver on my TV.
What have we learned from the Wikileaks reveal of the Trans-Pacific Partnership? We’ve learned that our trade negotiators are secretly sticking to an agenda that is being increasingly questioned by the public, Congress, and other branches of the Administration.
The secretive negotiations around the Trans Pacific Partnership (TPP) Agreement have been raising questions about what the administration is demanding other countries put into their IP laws. With the recent leak of the IP chapter via Wikileaks, one of the biggest questions is what new revelations are in the leaked text. The answer to that is either not much, or a lot, depending upon what you mean by the question.
As for the sorts of provisions the US is asking these several countries to agree to, there hasn’t been a lot of change there. It still has language that indicates that even temporary electronic copies—like the copy you’re making of this post on your computer just by reading it, or the copy your computer makes of an mp3 whenever you play it—are presumptively illegal. It still contains language that can make it harder for countries to create new types of exceptions and limitations to copyright. It still limits the types of exceptions countries can make for laws enforcing DRM. It still pushes for minimum statutory damages for copyright infringement. And so on and so forth.
Banksy puts his work out on the street. So what happens when someone restricts access to it, for a fee? This post explores the separate questions of ownership surrounding this story: ownership of copyrights, ownership of copies, and "ownership" of neighborhoods.
A story has been circulating about a group of men in East New York who were charging people $20 to view an
image of a beaver that street artist Banksy has stenciled onto a wall there. In
any case, it’s generated a series of questions about various parties’ rights.
There's a nagging
point that copyright wonks might overlook in questions of broadcast and
cable—that cable companies pay not just for the statutory copyright licenses to
copyright holders, but also "retransmission consent" fees to local
broadcasters—even if the content they're paying for isn't owned by the local
When you watch network television channel (Fox, for
instance), on cable, you're likely aware that your cable company is paying someone
to bring you that channel. After all, the shows you're watching are coming from
Fox, not Comcast or Time Warner or Dish. It would make sense if Comcast was
then paying Fox for the rights to carry its programming.
Taking a closer look at the FCC's Net Neutrality Rules.
Yesterday, Michael wrote about the importance of net neutrality, and what's at stake in the court case that will be argued next Monday. Today, I'd like to take a closer look at the source of the court case that's going to be argued next Monday: the FCC's net neutrality rules that Verizon is suing to overturn.
In the past Congress has granted certain organizations, such as the Boy Scouts of America and the Olympics special treatment when it comes to the use of names and logos. But with today's trademark laws, isn't it time to revisit the use of the law?
About a year ago, Samantha Matalong Cook and a number of her
friends decided to start an organization that would teach their kids how to
make, build, and hack various types of technology. They called the group "Hacker Scouts," and as they got
underway, they started getting interest from thousands of parents around the
country, all interested in joining or starting local chapters of their own.
Soon, the Hacker Scouts applied for a trademark in their name. And since you've
read the title of this post, you know where this is
Robin Thicke pushes back against copyright litigation threats.
Robin Thicke is apparently being accused of infringing copyrights in Marvin Gaye's "Got to Give It Up" and Funkadelic's "Sexy Ways" in his single "Blurred Lines." Apparently in response to demands that he pay licensing fees to the estate of Marvin Gaye and Bridgeport Music, Inc. (the company that has bought up the rights to Funkadelic's songs), Thicke is asking a court to state conclusively that he's not infringing copyrights.
Members of the band The Turtles, best known for their 1967 song "Happy Together," have filed a class-action lawsuit against SiriusXM, saying that the satellite radio company is violating the rights they have in their sound recordings by playing their music to satellite radio subscribers without permission.
Sound Recording Copyrights are Recent, and More Limited
This might seem to be a strange oversight on the part of SiriusXM, except that normally, radio services don't need to get permission to play music. This is because copyrights for recording artists are a relatively recent phenomenon. In fact, recording artists didn't have *any* copyright rights in their works until 1972. Even after 1972, when Congress decided to expand copyrights to include recorded sound (copyrights in sheet music had been allowed since the 1830s), it did so in a limited manner. Recording artists could prevent others from reproducing, making derivative works of, or distributing copies of their works, but they couldn't stop anyone from publicly performing them.
That included broadcasters, who were free to play records over the air without permission or payment to the people who made the records. Even much later, when Congress decided to expand recording artists' rights to include public performance "by means of a digital audio transmission," it also included a statutory license for that right, meaning that satellite radio and webcasters, who make digital audio transmissions, don't have to get permission from recordings artists—but they do have to pay for the use of their songs. (These statutory licenses in section 114, which are calculated differently depending upon the type of broadcaster, are the source of a lot of the conflict you might be hearing about internet radio rates.)
The witness list for upcoming copyright hearings raise significant questions about who the subcommittee is really listening to.
House IP Subcommittee recently announced
its plans to hold its next two hearings in its series on copyright
reform. The first, to be held this Thursday, July 25th, is entitled “Innovation
in America: the Role of Copyrights.” The next, to be held next
Thursday, August 1, is as-yet untitled, but will apparently be about the role
of technology in innovation.
announcement raises a few questions for the upcoming hearings. Why are they
being structured this way? What, exactly, does the subcommittee hope to learn
from the witnesses in them? And how will that information contribute to the
cause of copyright reform?
Amendment would improve the "Bandaid Bill" by allowing you to get help unlocking your phone, but changes won't last.
the House Judiciary Committee will be offering amendments to one of the phone unlocking bills currently before it.
That bill, which was introduced by Rep. Goodlatte, the
Chairman of the committee, provides a temporary fix to the cell phone unlocking
problem. (That original bill is available here)
Should it pass, users would once again be able to alter the firmware on their
phones so that they can use the phones they've bought with a new network. This
change to the law would last until the Library of Congress's next rulemaking on circumvention,
likely a couple of years from now.
Our new PKThinks white paper takes a look at one aspect of the changing relationship between copyright owners and owners of copyrighted things: the first sale doctrine.
Today, we’re releasing a white paper called “Copies, Rights, and Copyrights.” It’s about the conflict between the owner of a copy of a work—like you, when you buy a paperback—and the owner of the copyright in that work – the author, or the author’s publisher. It’s often an invisible conflict, because to us, the basic boundaries in that relationship are so customary as to be obvious: the copyright holder gets to prevent the book being copied, and the owner of the copy gets to use that copy any other way she wants.
But things get trickier as we start looking at digital copies—in particular, copies that are sold as downloads instead of on physical media like CDs or DVDs.
That’s because most of the ways in which we use digital media require making copies—just reading an ebook or listening to an mp3 will make additional copies within the device as it is being buffered or cached. Transferring ownership of a copy from one person to another also requires making copies—unless you’re handing over your entire hard drive to someone.
Parts of the debate
are still missing from the discussion of copyright reform in Congress, but we’re starting to fill
in the gaps. This includes the need to look at individual artists, creators,
and users instead of the intermediaries and big incumbents.
Yesterday, I briefly summarized some of the major themes
coming from the witnesses in the House IP Subcommittee’s copyright reform
hearing. Since the witnesses covered those same points in their oral testimony,
I thought I’d devote this post to some of the themes that emerged from the
other side of the room—from the representatives in their statements and
The structure of today’s hearing owes a lot to a multi-year
project organized by Professor Pamela Samuelson called the Copyright Principles
Project. Each of today’s five witnesses
participated in the project, which was an attempt to bring together a number of
stakeholders from different parts of the copyright debate.
New cell phone unlocking bill would not only allow you to unlock your
cell phones, it would address a long-standing problem in copyright enforcement.
Today, Rep. Zoe Lofgren, joined by Rep. Thomas Massie, Rep. Anna Eshoo, and Rep. Jared Polis, introduced another cell phone unlocking
bill. Unlike those that have come before, though, this one also takes aim
squarely at the problems with the 1998 Digital Millennium Copyright Act (DMCA) itself—the
law that may make it illegal to break digital locks, even for noninfringing
The bill, named the "Unlocking Technology Act of
2013," specifies that you're not infringing copyright when you unlock your
cell phone—which is when you adapt or alter the phone's firmware so it can be
used with a different cell phone company.
Today, we sent a letter to the leaders of the House and Senate Judiciary Committees, asking them to pass a strong, permanent fix to the cell phone unlocking problem, and to take a deeper look at the problems caused by the anticircumvention provisions of the DMCA. The letter, available here, is signed by over thirty consumer groups, companies, and online communities, and joined by a number of academics and activists.
We want to make sure that all of the people who were upset that the DMCA could prevent them from unlocking their phones get a solution that actually fixes the problem by changing the law, not just reversing the Library of Congress's decision and waiting for a do-over a few years from now.
It's no longer a debate: people recognize that the anticircumvention provisions of the DMCA are flawed. Insofar as they keep people from doing things like unlocking their cell phones, over 100,000 people and the White House have said so, members of Congress have said so, and the FCC has said so. There's also widespread recognition that the DMCA as a whole needs reevaluation, which the Register of Copyrights recognizes.
So why are we seeing simultaneous efforts to double down on enforcing a defective law?
Maria Pallante, the Register of Copyrights (and thus, head of the Copyright Office) was the sole witness in a hearing today with an ambitious title: "The Register's Call for Updates to U.S. Copyright Law." (An archived copy of the hearing is here) Her testimony provides a guide to the sorts of changes she thinks are necessary in the coming years.
Several people have raised the specter of trade agreements standing in the way of cell phone unlocking. The basic idea is that, in a broad trade negotiation between the US and South Korea (and in a number of others), the two countries agreed to make sure their copyright laws had certain similar features. Among those were requirements that they have laws against breaking digital locks to access copyrighted works, and that they only have certain kinds of exemptions to them. Cell phone unlocking is not one of the specific exemptions.
Mike Masnick at Techdirt characterizes this (at least in the article's title) as the US "signing away" its ability to enact a more permanent exemption for phone unlocking.
Yesterday, the White House responded to a We the People petition on phone unlocking, stating that consumers should be able to unlock their cell phones and tablets. This puts the administration in line with a large number of consumers who are upset that the Library of Congress refused to exempt phone unlocking (modifying phone software so consumers can use their phones with a different mobile phone company) from the Digital Millennium Copyright Act (“DMCA.”)
However, the White House statement doesn’t reverse the Library’s decision, and nothing in the statement seems to suggest that it plans to.
So 100,000 of you (and counting) are as puzzled as we are as to why copyright laws such as the DMCA should prevent people from keeping their existing phones when they switch phone companies. By hitting that threshold of signatures several days before the 30-day deadline, the petition should generate a response from the White House.
The Copyright Office is apparently looking at the problem of orphan works again, taking up the question of how to deal with the large and doubtlessly growing catalog of copyrighted works whose authors cannot be located. In its Notice of Inquiry (“NOI”), it asks not just about the stalled Congressional orphan works bill of 2008 (which had its origins in a Copyright Office proposal), but about a handful of new and significant developments that happened in the intervening years—in particular, the now-impossible-to-ignore issue of mass digitization. We filed our joint comments with the EFF on Monday.
A number of news outlets have covered the fact that, by tomorrow, it will be illegal for you to unlock your cellphone. In other words, for the next 10 or so hours, you can hack your AT&T-bought phone to work on T-Mobile's network, completely free of the threat of being sued.
Today, Senator Ron Wyden spoke at CES, and remarked on the striking contrast in the landscape of technology policy between today and the time of last year's CES. Back then, SOPA and PIPA seemed like inevitabilities to be, at best, mitigated through a trench warfare style of advocacy. Today, we see a willingness to move forward on important (and often neglected) issues and challenge old assumptions underlying these policy debates.
Wyden's talk reflects this, indicating a broad agenda to encourage what he calls the "freedom to compete." I'd call it ambitious, but if that's so, it's only in its breadth—each of the particular areas he addresses has concrete, feasible goals that improve things not just for tech companies, but primarily for consumers and users.
So a considerable number of countries, including the United States, have refused to sign the new International Telecommunication Regulations ("ITRs"), which together form a new version of the international treaty on telecommunications. More have indicated they will need further instructions from their national capitals before deciding whether or not to sign.
In the end, the new ITRs and the documents circulated with them contain a number of provisions that seem to have raised enough concerns for the United States, Canada, the UK, New Zealand, Australia, Sweden, Costa Rica, and Denmark, at least, to refuse to sign them.
[NOTE:If you're concerned about what the WCIT might mean for international Internet governance, Monday is the time to watch. Some of the most controversial proposals for changes to the international treaty on telecommunications will be discussed in the plenary session Monday evening in Dubai (that's going to be about 11:30 Eastern Time). The ITU has been live-streaming the plenary sessions here.]
Today, a number of civil society groups involved in the ITU's World Conference on International Telecommunications ("WCIT") sent a letter to the Secretary General of the ITU, urging him to increase openness and transparency of the ITU to civil society and the world at large.
As the ITU's World Conference on International Telecommunications ("WCIT") gets underway, it's clear that the efforts by global civil society groups on behalf of transparency and free expression have had at least something of an impact.
Most importantly for those wanting to follow the discussions at home, the ITU agreed to webcast is plenary sessions and the meetings of the "Review Committee," which is the committee that will be discussing proposed changes to the International Telecommunications Regulations ("ITRs").
And it's nice to note that Hamadoun Touré, the Secretary General of the ITU, emphasized the involvement of civil society in his opening remarks (including a mention of Public Knowledge by name).
Today, Public Knowledge joined with technology companies and state consumer advocates to defend the FCC's open Internet rules against a challenge by Verizon and MetroPCS. The brief for these intervenors was prepared by the Open Internet Coalition (which includes Amazon, eBay, DISH Network, Facebook, Google, Paypal, Skype, Netflix, and others), Vonage, Public Knowledge, and the National Association of State Utility Consumer Advocates ("NASUCA").
At stake are the FCC's open Internet rules, designed to protect net neutrality. Verizon has raised a host of arguments against them, saying, for instance, that the FCC lacks the authority to issue the rules, and that the rules infringe upon telephone companies' rights of free speech.
In the wake of the Kirtsaeng oral argument, I wanted to look at a strange thing about how the first sale doctrine works in our copyright laws. The first sale doctrine makes it legal for you to sell, lend, or give away copies of copyrighted works that you own.
There were three separate theories of section 109's interpretation in the Court today: Kirtsaeng's, made by Josh Rosenkranz; Wiley's, made by Ted Olson, and the U.S. Government's made by Deputy Solicitor General Malcolm Stewart. Kirtsaeng's position is that "lawfully made under this title" means "made lawfully," and that to judge what "lawfully" means, we look to the standards of title 17.
Today, the Supreme Court will be hearing arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case that could decide whether or not you fully own your own books, CDs, DVDs, and all your other things that contain copyrighted works—particularly if they were made outside the US.
Recordings of the oral arguments should be posted later in the week. In the meantime, if you’re looking for some background on the case, see Jodie's post here, or read on below.
Charles Graeber at Wired has an article profiling Mega, the planned successor to MegaUpload. A key difference between the old service (indicted on criminal copyright charges in the US) and the new service is that all of the filed uploaded to mega will be encrypted upon upload, meaning that Mega won't know, and won't have any way of finding out, what's actually sitting on its servers. That should prevent it from being accused of ignoring activity it knows is infringing. Mega also says that if copyright holders find users providing the keys and the links to infringing files, Mega will abide by the DMCA and take down those files.
Yesterday, a federal district court in New York decided that five universities' digitizing of their library collections was a fair use, rejecting the Authors Guild's attempt to halt the efforts. For a good, brief rundown of the decision, see James Grimmelmann's early post here. Also, see Nancy Sims here, and Kenneth Crews here.
Basically, HathiTrust, a non-profit digital library partnership, and five universities (Michigan, the UC system, Wisconsin, Indiana, and Cornell) partnered with Google to scan books in the university libraries.
In July, Craigslist sued 3Taps, a company that took Craigslist listings and made them accessible to third-party developers to make useful add-ons (like Padmapper, a site that plotted apartment listings on maps). Craigslist threw a bevy of complaints at these companies, including that they infringed Craigslist's copyrights in the listings—an odd claim, since most of those bare-bones listings aren't copyrightable in the first place, and because any copyrights would belong to the authors of the posts, and not Craigslist. Now 3Taps has filed a countersuit, alleging that Craigslist is violating antitrust laws.
Once again, the Senate is considering a bill that would allow fashion designers to sue people for knocking off their designs. The "Innovative Design Protection Act," S.3523, is being considered by the Senate Judiciary Committee. The bill, like its predecessors, would create a three-year term of protection for clothing, handbags, eyeglass frames, and other types of apparel, preventing anyone else from using the same design as the original designer. For a look at some of the arguments around earlier versions, see Katy's post here.
This would be a marked departure from the state of the law now.
This is the third post in our our series on how a US proposal for a copyright chapter in the Trans Pacific Partnership Agreement (TPP) would hurt the rights of citizen’s in the 21st century. That proposal was leaked on the Internet in February last year. For more details on the TPP, check out tppinfo.org.
By reading this post, you have made copies of a copyrighted work. In fact, this is true of any copyrighted work you view on an electronic device. That copy is sitting in your computer or your phone's RAM, and likely also in a cache in its long-term storage. Streaming online video, even if you don't save it to your hard drive, still means that a copy of that video is made on your computer: bit by bit, the entire video is copied into a buffer before it gets played to you.
On Friday, Representatives Zoe Lofgren, Jason Chaffetz, and Jared Polis sent a letter to the Department of Justice and the Department of Homeland Security, demanding to know more about Operation In Our Sites, the program through which law enforcement authorities have been seizing the domain names of websites accused of hosting infringing content.
The letter, addressed to Attorney General Holder and Secretary of Homeland Security Napolitano, notes that seizing domain names without the proper respect for transparency and due process can suppress free speech and cripple legitimate businesses.
A recent piece in Marketwatch emphasizes the thorny questions of what happens to a person's electronic libraries when they die. Shelves of books, LPs, and CDs can be bequeathed to various surviving relatives and friends, or donated to libraries or charity. It’s less clear what happens to someone's iTunes library or their collection of Kindle books.
Two Barriers to Simple Digital Inheritance
Two things create this difficulty. One is the fact that copyright law wasn't originally designed to deal with "born-digital" copies—copies that were sold as digital downloads, and so weren't initially tied to a particular physical object. That leads to problems whenever I want to transfer a copy to someone else—copyright law lets me "distribute" legal copies that I own, but I can't "reproduce" them. Handing over a CD is a distribution.
The IP Attaché Act now has company in the dubious club of former bits of SOPA/PIPA being floated in Congress. This week, Senator Debbie Stabenow (D-MI) offered and then withdrew an amendment to add another raft of copyright enforcement proposals to a trade bill.
The amendment she offered was essentially a version of her "Protect American Innovation Act," introduced last November. It contains a lot of the same provisions we keep seeing in one form or another in various bills that continually try and insert new bits of the content lobby's agenda into U.S. law.
In particular, it seeds more IP enforcement officials throughout the government (including creating a new Director of IP Rights Enforcement at the Treasury Department).
Today, Public Knowledge filed a public interest amicus brief in the Supreme Court case of Kirtsaeng v. Wiley & Sons, Inc., a dispute that has the potential to drastically alter users’ property rights in their own copies of books, movies, music, software—in fact, any copyrighted material. The case began with a Thai student studying in the United States who realized that international editions of textbooks cost significantly less than the U.S. editions. He then imported international editions and resold them. Wiley & Sons sued under the theory that these sales violated their exclusive distribution rights.
Today, a group of public interest organizations, including Public Knowledge, launched a petition asking the Obama administration to affirm the concept of ownership rights—the idea that consumers should actually fully own the things that they buy.
This may seem like a fairly obvious concept not in need of affirming, but the fact of the matter is that increasingly bizarre interpretations of copyright law threaten to make it illegal for you to sell, lend, or give away many of the things you own.
Today, we filed comments with a number of other public interest groups urging the FCC to issue rules that would prevent state and local governments from shutting off cell service in situations like the BART protests of last summer.
The comments that we filed today were replies to several issues raised in the first round. In particular, we were responding to arguments raised about who gets to initiate shutdowns, the constitutionality of some proposed and existing shutdown procedures, and the fact that government agencies cutting of access to the public airwaves still runs afoul of the First Amendment, even if they're cutting off access in areas that aren't traditional public forums.
Each year, the federal government spends billions of dollars funding all sorts of important scientific research. But when that research produces important results, accessing that vital information requires subscriptions to a huge variety of journals. Subscribing to all of the publications necessary is beyond the reach of any researcher, and even strains the budgets of major universities and other research institutions. Even then, those libraries are often only accessible to their affiliated faculties and students, not the wider world of users—including the taxpayers who funded the research in the first place.
If you've been following this space, you've likely seen that Public Knowledge was on the ground in Dallas this past weekend, covering the latest round of negotiations on the Trans-Pacific Partnership Agreement, or TPP. Among the various problems with the agreement itself (possible increases to already-draconian copyright penalties internationally, increased emphasis on protecting DRM, a lack of inclusion of well-established limitations and exceptions like library uses and fair use), there's the fact that the agreement itself remains a closely guarded secret. The public is apparently not allowed to see even the opening positions their governments are making in negotiations.
This week, Public Knowledge, along with the Center for Democracy and Technology, the Electronic Frontier Foundation, and several other public interest groups, urged the FCC to ensure that neither government agencies nor wireless providers shut down communications in an emergency.
The comments, also signed by the Benton Foundation, Free Press, the National Hispanic Media Coalition, Minority Media Telecommunications Council, and the Open Technology Institute of the New America Foundation, respond to the FCC's Notice of Inquiry, which asked about what procedures should be followed when government wanted to shut down communications during a crisis.
In their case against YouTube, Viacom and other content companies keep looking for ways to impose a duty to monitor on the video-sharing site. Despite the Digital Millennium Copyright Act's (DMCA) clear statements that services don't need to monitor, the content companies keep trying to pick away at other components of the law to work their way around it. (Public Knowledge filed a friend-of-the-court brief in this case, arguing that filters and monitoring aren't required to meet the DMCA requirements)
Today, the Second Circuit Court of Appeals in New York shot down the majority of those theories. Meanwhile, the case has been sent back to the district court level for more factfinding on exactly how much YouTube employees may have known about the presence of specific infringing files on their service.
As Kara noted last week, the FCC is asking you to comment on when it's appropriate for government agencies to cut off cellular services in the interests of public safety. For a variety of reasons, my initial answer to that is "rarely, if ever." Aside from definite knowledge of a cell phone-triggered bomb, or a freak occurrence where the 800-900MHz range somehow interfered with a pacemaker, it just doesn't seem like a particularly good idea. There's a host of reasons why, and a lot of them were argued in the wake of BART's October shutdown of cell service in anticipation of a protest. But this isn’t about BART; it’s about preventing future unnecessary shutdowns.
There's been a fair bit of coverage about this letter sent from the State Department in response to Senator Ron Wyden's questions about how much the Anti Counterfeiting Trade Agreement ("ACTA") binds the U.S. It's a current question because among the many questions swirling around ACTA, one is whether it "binds" the United States to its terms. The answer from the State Department is "yes"—but that may not actually mean what it appears to at first, and the reason for that has to do with why I've placed the word "binds" in scare quotes above.
Today, we followed up our request urging the Copyright Office to allow consumers to break the digital locks on their DVDs so they can play them on their phones, tablets, and other digital devices. Along with the reply comments we filed today, we included the statements of nearly 400 users (warning: massive pdf) who stated for the record that they own lawfully made DVDs and would like to be able to space shift their movies exactly the way they can shift music from CDs to their iPods.
There's been a sort of giddy euphoria among the netroots recently, with a major win against harmful copyright legislation in the forms of PIPA and SOPA. And there's a lot of discussion about what to do with this newly-emergent energy and focus. Some are turning to the IP provisions of the Trans Pacific Partnership, or the role of the US is pushing stringent copyright protection through the Special 301 process. Others are focusing on the Research Works Act, which threatens to overturn research funding policies that ensure that the results of taxpayer-funded research stay accessible to taxpayers.
The White House recently released a response to two petitions protesting the Stop Online Piracy Act (SOPA). The statement agreed with the petition signers that anti-piracy laws must not increase censorship or risk security flaws by tampering with the domain name system (DNS), key parts of both SOPA and the Senate's proposed PROTECT IP Act (PIPA). This is a fantastic sign that shows that the objections of ordinary, clued-in Internet users can make a difference in stopping misguided legislation.
The statement, co-authored by Victoria Espinel, the IP Enforcement Coordinator, Aneesh Chopra, the Chief Technology Officer, and Howard Schmidt, the Cybersecurity Coordinator, affirms the message that legislation tampering with the DNS poses real risks to the security and stability of the Internet.
I keep getting asked if the PROTECT IP Act (PIPA) is better or worse than the Stop Online Piracy Act (SOPA). Even without addressing how misleading relative terms like "better" can be, it's impossible to give an unequivocal answer because of several significant differences between the details of the bills, even if they both do many of the same things (and do them badly).
So while both bills try to curb online infringement by tampering with the domain name system (DNS); allow private actors to de-fund targeted sites, and grant blanket immunity to certain intermediaries for taking copyright law into their own hands, each has its own peculiarities that cause additional problems.
My original plan had been to write up a quick summary of today's markup, but at this writing, the House Judiciary Committee has discussed less than half of over 50 pending proposed amendments to SOPA. However, there's a clear trend in the committee regarding amendments—nearly every one voted on so far has been defeated.
I'd been live-tweeting a blow-by-blow of the proceedings so far, but the main takeaways from the markup are probably best recounted thematically, rather than chronologically, since a lot of themes get repeated with each amendment 's introduction and debate.
There's various levels of debate being engaged in during this markup. First, there's the discussion of the bill text. Then there's the discussion of the bill's effects. Third is the discussion of proponents' and opponents' motives.
Monday afternoon, the House Judiciary Committee released its planned manager’s amendment to SOPA, claiming that it eliminated significant concerns with the bill. While it does fix some of the current version’s outrageous proposals, it leaves some of the most dangerous provisions largely intact. Here’s a brief rundown of our concerns with the manager’s amendment.
The House has just introduced its take on the PROTECT IP Act, and they’re calling it H.R. 3261, the Stop Online Piracy Act. It includes both the "rogue websites" bill and a version of the felony streaming bill. SOPA is significantly worse than its Senate cousin. This isn’t just because it uses more expansive definitions or broader language; it makes fundamental changes to who faces liability for copyright infringement. Here are a few brief highlights:
Easier for Private Parties to Declare You an IP Thief
Today, the MPAA and other movie industry groups sent a letter to the Senate urging them to pass S. 968, the PROTECT IP Act. The letter attempts to handwave away real questions about the bill's effects on security and free speech with some awfully weak arguments embedded within its refrains of "piracy is a problem" and "we are a big industry."
No one contests that movies are a big industry, or that there's a lot of infringement on the Internet. But those aren't the questions before Congress. The question really is whether S. 968 does any net good. And from here, it certainly doesn't look like it.
Just before the Justice Department announced that it was suing to block AT&T's acquisition of T-Mobile, AT&T promised regulators that it would bring 5,000 call center jobs back into the country, if only the merger were approved. Amazon, facing the prospect of paying sales tax in California, promised it would bring 7,000 jobs if only they didn't have to pay those taxes. After noting these parallel promises, Marketplace host Jeremy Hobson quipped, that he promised to create 10,000 jobs if he could be exempted from taxes—honest!
Today, the Justice Department announced that it is filing suit in federal court to block the proposed merger between AT&T and T-Mobile, saying that it violates Section 7 of the Clayton Act, which prohibits mergers that may "substantially lessen competition, or tend to create a monopoly."
Specifically, the DOJ was concerned with the effects of the consolidation on consumers and innovation, saying that the merger would likely lead to higher prices, poorer quality service, and less innovation and variety in wireless mobile products.
Today, Public Knowledge, joined by a wide variety of consumer, civil rights, and civil liberties groups, urged the FCC to immediately pass rules that would prevent local authorities from ordering a shutdown of wireless services the way that BART did earlier this month. As Harold’s earlier blog post points out, we don’t even need to get to the (extremely pressing and important) First Amendment issues to find that BART’s actions violated the law—the Communications Act, to be precise.
Torrentfreak recently ran a fascinating pair of opinion pieces from two lawyers regarding whether or not someone could be liable for copyright infringement if someone else used their open WiFi connection. One attorney, Nicholas Ranallo, walks through the established law of direct and secondary copyright liability, and comes to the conclusion that generally, no, you're not liable for someone else's infringements using your connection. The other attorney, Marc Randazza, doesn't discuss copyright liability, but instead starts drawing out hypotheticals about the law of negligence.
This week, the US government responded to a Spanish Internet company's petition to have its seized domain name returned. Earlier this year, customs officials seized the domains rojadirecta.com and rojadirecta.org under suspicion of copyright infringement. The domains' owner, Puerto 80, has argued that, by seizing the domain names and preventing their use, the government has not just taken down a legitimate site, but also is suppressing speech—not just the speech of the site's operators, but of the users on the discussion boards hosted at the site.
UPDATE: Added mention of the $35 appeal fee in the "Appeals" section below.
Today, major ISPs joined the RIAA and MPAA in announcing a joint program to deal with file-sharing. The document governing this agreement, a "Copyright Alert System," is hosted here. Public Knowledge and the Center for Democracy and Technology issued a joint statement on the CAS, available here.
Beyond that, what does this agreement represent? It extends some of the characteristics of some ISPs' existing voluntary notice-forwarding agreements, while stopping short of a three-strikes-and-you're-out procedure.
The Commission’s reports to Congress are more than a data-collection exercise. They serve a purpose beyond simply cataloging, without comment, “the status of competition in the market for the delivery of video programming.” As the Commission recognizes, the purpose of collecting this information is to “better understand the implications for the American consumer, and provide a solid foundation for Commission policy making with respect to the delivery of video programming to consumers.” While the Commission can use a number of tools to accomplish its policy goals, its basic task with regard to video programming is clear. Congress charged it “to promote the public interest, convenience, and necessity by increasing competition and diversity in the multichannel video programming market, ... and to spur the development of communications technologies.” A new technology, online video, now allows the Commission to promote competition and diversity better than ever before. But the Commission must take a few steps to allow online video distributors (“OVDs,”) to realize their potential.