Posts by Jodie Griffin:

This morning the Supreme Court announced that it will hear arguments in a case with far-reaching implications for anyone who has ever sold or given away goods that contained copies of copyrighted works. Public Knowledge, along with the Electronic Frontier Foundation and U.S. PIRG, filed an amicus brief in January urging the Court to hear this case. The Court should ultimately reverse the lower court’s ruling, which effectively granted copyright holders a perpetual distribution right for any copies manufactured outside of the United States.

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Verizon and the cable companies have always been reluctant to answer the tough questions about their proposed deals to team up rather than compete on voice, video, and data services, but now they’re even going so far as to try to stop potential opponents of the deals from participating in the FCC’s review at all. The FCC shouldn’t indulge this kind of gamesmanship and should give all interested parties a meaningful opportunity to make thoughtful, well-informed arguments about these deals.

Yesterday Verizon and the cable companies filed an objection to try to stop Netflix’s outside counsel from reading the companies’ license transfer, agency, resale, and Joint Operating Entity agreements.

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It looks like we’ll soon know whether the Supreme Court will help referee an increasingly common fight between publishers (and other distributors and manufacturers) and consumers who sell or give away their used copies of books, music, games, and basically anything that contains a copyrighted work. Publishers and manufacturers want to be able to control—or stop—sales of used goods, while consumers want to be able to dispose of their own physical property however they see fit. What the Court chooses to do could have enormous ramifications for consumers and businesses across the country that sell or lend copies of copyrighted goods, from books to toys to automobiles.

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The orders the Federal Communications Commission (FCC) issued last week in its review of the big deal between Verizon, Comcast and assorted other cable players will force the companies to play by the rules, and will provide a good view into how the industry is trying to construct its own little cartel.  The FCC staff asked a number of detailed questions, and the answers could show how Verizon and its four cable partners want to divide the world among themselves.

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As part of its sales pitch to antitrust regulators, Universal Music Group, the largest record label in the world, is now claiming that it absolutely must buy the record label EMI in order to fight piracy. Yes, Universal is seriously claiming that the pressures of online copyright infringement are forcing it to buy one of its largest competitors in an already very consolidated market. On this point, Universal is wrong. Universal is not trying to buy EMI because it wants to fight piracy, and even if it was, this deal would likely have the exact opposite effect. The best way to fight piracy is to offer fans a quick, easy, reasonably priced legal alternative to infringement. Those consumer-friendly alternatives are much more likely to thrive when no single record label has a large enough market share to effectively veto any new service it doesn’t like. 

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Right now the biggest record label in the world, Universal Music Group, is attempting to buy the fourth-largest record label, EMI, a move that could stifle the development of new digital music services to the detriment of musicians and their fans. If one company holds a large enough share of the recorded music market, new online music services will inevitable need to curry favor with that company in order to succeed, which gives that company (here, Universal) effective veto power over new services and competitors.

Today Public Knowledge and the Media Access Project filed a letter advising the Federal Trade Commission to investigate thoroughly how the proposed transaction will affect both artists and audiences before it lets the one of the “Big Four” major labels take over another. While we are not currently asking the FTC to necessarily block the deals outright, the deals pose some serious potential harms to musicians and consumers. The FTC should rigorously review the likelihood and scale of those harms before it decides whether it should approve the acquisitions in their current form.

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Today Public Knowledge, along with the Electronic Frontier Foundation and U.S. PIRG, filed a brief asking the Supreme Court to review a lower court decision in the case John Wiley & Sons, Inc. v. Kirtsaeng on used textbook sales that could have enormous ramifications for consumers and businesses across the country that sell or lend copies of copyrighted goods, from books to toys to automobiles.

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Right now the Copyright Office is in the process of overhauling how it administers part of the Digital Millennium Copyright Act (DMCA), which has the potential to make the copyright notice-and-takedown process easier for service providers and copyright owners alike. The DMCA provides a safe harbor for online service providers that limits their liability for users’ infringement if they satisfy a number of conditions. One of those conditions is the agent designation requirement: the service provider must designate an agent to receive infringement notices from copyright holders so the service provider can take down the allegedly infringing content (subject to a counter-notice from the user). This week, Public Knowledge filed comments in the Copyright Office’s rulemaking to update its directory of service providers’ agents.

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Who would have thought that closed captioning could become the next big copyright fight? Yesterday Public Knowledge filed reply comments in an FCC proceeding implementing new video closed captioning rules under the 21st Century Communications and Video Accessibility Act (“CVAA”). Other commenters in the proceeding argued that copyright protections prevent video programming distributors from adding or improving captions to videos that don’t meet the CVAA’s requirements. PK stepped in to point out that even if captioning infringes copyright (which is unlikely), copyright, like any other private right, is subject to constitutional laws and regulations. Copyright does not trump a captioning law any more than real property rights trump the Americans with Disabilities Act.

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One of the many serious problems with the Stop Online Piracy Act (“SOPA”) (pdf) is how it tacks itself onto existing law to expand liability to people who may be three times removed from any actual copyright infringement. In § 103, SOPA wraps another layer of liability around what are called the “anticircumvention provisions” of the Copyright Act (which are found in section 1201 of the Copyright Act). The goal of the anticircumvention provisions is preventing people from circumventing technology that protects copyrighted works. Importantly, however, some courts have held that § 1201 prohibits circumvention even when the person’s ultimate use of the work does not infringe copyright.

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