Posts by Mart Kuhn:

Yesterday morning, the United States Supreme Court heard oral arguments (transcript here) in the case of Costco Wholesale Corporation v. Omega, S.A., a copyright dispute that Public Knowledge has had its eye on for some time (see our brief in the case and the accompanying blog post). The legal question at the heart of the argument is a seemingly esoteric question of statutory interpretation: namely, what the phrase “lawfully made under this title” means in the context of title 17, section 109 of the U.S. Code. In plain English, the question is whether copyright law’s “first sale” doctrine–which is what permits you to give a video game as a birthday present, your local public library to lend out books, and the Redbox machine at the grocery store to rent out movies–applies to items manufactured outside of the United States.

Without the first sale doctrine, those acts of giving, lending, and renting copyrighted works would infringe upon the copyright holder’s exclusive right of distribution. First sale essentially says that once the copyright holder has sold a particular copy of a copyrighted work, it doesn’t get to control what happens to that copy further down the line. The facts behind this particular lawsuit, where Costco is being sued for reselling wristwatches without authorization, show that copyright law is being applied in situations far removed from the creative pursuits it’s traditionally been associated with. As a result, however the Supreme Court decides, the potential ramifications will be quite far-reaching.

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Blizzard Entertainment has a history of making popular, well-regarded games, such as those in their long-running WarCraft, Diablo, and StarCraft franchises, and even games like The Lost Vikings back on Super NES. But Blizzard also has a recent history of expounding a rather broad theory of copyright liability, one which gives copyright owners wide discretion to unilaterally decide which of their customers’ should count as copyright infringement. The upcoming release of the much-anticipated StarCraft II, along with a recent change to the Terms of Use for Battle.net, Blizzard’s online multiplayer service, has some people worried. After a brief review of Blizzard’s approach to copyright, I’ll describe how they might apply it to StarCraft II.

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What do printer cartridges, garage door openers, and universal power supply calibrations have in common? They all use copyrighted code, they all feature technological impediments to unauthorized execution of their code — and now they’ve all been the focus of appellate litigation under the Digital Millennium Copyright Act (DMCA).

One of the most-litigated and most-argued provisions of the DMCA is section 1201, the “anti-circumvention” provision which forbids breaking or bypassing certain technological measures that protect copyrighted works. Broadly speaking, section 1201(a) deals with technological measures that restrict access to a copyrighted work, and 1201(b) deals with copy controls and other measures that restrict not your access to a work but what you can do with the work after accessing it. Section 1201(a) forbids both trafficking in circumvention tools and the act of circumvention itself; 1201(b) covers only trafficking. An ongoing source of controversy is whether and how closely ‘access’ under 1201(a) must be tied to an underlying act of copyright infringement before circumvention liability will attach. To put it another way, is what you were going to do with a work once you accessed it relevant to the question of whether you’re allowed to grant yourself access? Different appellate courts have come down on opposite sides of this issue, and another circuit court just waded into the mix.

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The Intellectual Property Owners Association (IPO) describes itself as “a trade association for owners of patents, trademarks, copyrights and trade secrets.” As such, it seems like it’s an ostensible beneficiary of the international Anti-Counterfeiting Trade Agreement (ACTA) being negotiated right now. After all, the stated purpose of the agreement is to facilitate “fighting counterfeiting and piracy, and to negotiate an agreement that enhances international co-operation and contains effective international standards for enforcing intellectual property rights”–in other words, making life easier for intellectual property owners. So why is IPO opposed to ACTA in its current state?

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On July 1, the US Department of Commerce’s Internet Policy Task Force organized a day-long symposium titled “Copyright Policy, Creativity, and Innovation in the Information Economy.” The event, which featured speakers and panelists representing various government agencies, industry associations, media companies, tech companies, and civil-society groups, was designed to spark discussion on copyright and Internet policy, with an eye towards statutory reform.

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One of my research assignments as an intern here at PK involves looking at the organization and function of the Copyright Office, which exists as a part of the Library of Congress. In this research, I wanted to consider the various rules and regulations governing the Office and the Library in general. It turns out that, in addition to the relevant Federal statutes, the Library’s rules and the Office’s rules published in the Federal Register, and the Copyright Office’s “Compendium” of internal practices, all of which are available to the public online, there’s another body of regulations that are harder to find. These Library of Congress Regulations (“LCR”) are legally binding on the Library, but take some digging to find.

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Yesterday was the deadline for comments to the FCC regarding the proposed merger between Comcast and NBC Universal. Since one of the country’s biggest owners and operators of cable infrastructure is trying to integrate itself with one of the country’s biggest television content providers, there are a lot of potential issues that might arise. We at Public Knowledge, though, are leaving much of that for others to hash out; in our filing, we’re focused on the narrower issue of “over-the-top” Internet video–services that provide video content without owning the infrastructure that transmits the actual bits of the video. 

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As we’ve said before, negotiations over the Anti-Counterfeiting Trade Agreement (ACTA) should include input from the public, not just a handful of industry groups trying to shoehorn international public policy around their agenda. We’re happy that the draft text of the agreement was officially released in April, that the European Parliament took a strong pro-transparency and pro-consumer stance, and that the office of the US Trade Representative, the executive-branch body negotiating for the United States, has made some overtures towards accepting public comments.

But today I’m writing on a slightly different topic: secondary liability, or holding one person responsible for the copyright-infringing behavior of another. As Rashmi and John have written, ACTA seeks to make big changes to other countries’ laws by mandating secondary liability. And we’re not the only ones worried about this: major industry groups on both sides of the Atlantic have weighed in against ACTA in a pair of letters.

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We've posted about the US Trade Representative's Special 301 process before. For a quick refresher, here's Harold's video explaining the process generally, and Rashmi's post with some more detail.

The International Intellectual Property Alliance (IIPA) is heavily involved in the Special 301 process, filing submissions every year on behalf of its member organizations, the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA). It's only natural that these trade associations would be concerned with intellectual property laws and their enforcement around the globe, since copyright is where their members make their livings. It's less understandable, though, when they seem to argue that their exclusive economic rights should have priority over others' basic human rights.

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