for everyone

On Thursday the Senate is scheduled to meet and determine which bills should move forward. One such bill is S.3325, The Enforcement of Intellectual Property Rights Act of 2008. Make no mistake, this bill is to increase government involvement in intellectual property enforcement and to enhance  remedies for violations.

A couple of highlights from this new bill:

SEC. 506a. CIVIL PENALTIES FOR VIOLATIONS OF SECTION 506.

(a) In General- In lieu of a criminal action under section 506, the Attorney General may commence a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under section 506. Upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty under section 504 which shall be in an amount equal to the amount which would be awarded under section 3663(a)(1)(B) of title 18 and restitution to the copyright owner aggrieved by the conduct.

(b) Other Remedies-

(1) IN GENERAL- Imposition of a civil penalty under this section does not preclude any other criminal or civil statutory, injunctive, common law, or administrative remedy, which is available by law to the United States or any other person.`(2) OFFSET- Any restitution received by a copyright owner as a result of a civil action brought under this section shall be offset against any award of damages in a subsequent copyright infringement civil action by that copyright owner for the conduct that gave rise to the civil action brought under this section.’.

and

SEC. 401. INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR.

(a) Intellectual Property Enforcement Coordinator- The President shall appoint, by and with the advice and consent of the Senate, an Intellectual Property Enforcement Coordinator (in this title referred to as the `IPEC’) to serve within the Executive Office of the President. As an exercise of the rulemaking power of the Senate, any nomination of the IPEC submitted to the Senate for confirmation, and referred to a committee, shall be referred to the Committee on the Judiciary.

(b) Duties of IPEC-

(1) IN GENERAL- The IPEC shall–

(A) chair the interagency intellectual property enforcement advisory committee established under subsection (b)(3)(A);

(B) coordinate the development of the Joint Strategic Plan against counterfeiting and piracy by the advisory committee under section 403;

(C) assist in the implementation of the Joint Strategic Plan by the departments and agencies listed in subsection (b)(3)(A);

(D) report directly to the President and Congress regarding domestic and international intellectual property enforcement programs;

(E) report to Congress, as provided in section 404, on the implementation of the Joint Strategic Plan, and make recommendations to Congress for improvements in Federal intellectual property enforcement efforts; and

(F) carry out such other functions as the President may direct.

Yes, this bill designates a “copyright czar” that reports to the President and Congress, and enhances civil penalties available in the U.S. Copyright Act. The full text of the bill can be found here: http://thomas.loc.gov/cgi-bin/query/z?c110:S.3325:

Presumably the Senators in favor of this bill have been persuaded to take a greater role in copyright enforcement and to use taxpayer money to do so (just see section 503 that appropriates an additional $10,000,000 per year to both the Director of the Federal Bureau of Investigation and the Attorney General of the Department of Justice).

If you think our Senators should be focused on the real issues in our country, and not pandering to hollywood, publishing and recording industries, email your senator and tell them what you think: http://judiciary.senate.gov/about/members.cfm

Earlier this week we found out that JK Rowling and Warner Brothers were successful in their copyright infringement case against RDR Books for their planned publication of The Harry Potter Lexicon, an encyclopedia about all things Harry Potter.

Everyone was quick to discuss the decision, including The NY Times, WSJ, TechDirt, Stanford Law School, The Berkman Center — and a thorough analysis here at the Citizen Media Law Project.

What is most frustrating about the case is how JK Rowling filed it to block the publication of the Lexicon book, while she publicly praised the website upon which it is based. This lent a heavy handed overtone to the case from the start — big business bullying individual creativity to monopolize their ‘hit’.

It’s unfortunate that RDR Books and Steven Vander Ark weren’t successful in defending their fair use argument. After reading the opinion, Judge Patterson did uphold a number of key principles, while he struggled to fully grasp others.

For example, one principle that the Judge upheld was when Rowling argued that “use can’t be considered transformative because it doesn’t add significant analysis or commentary”, but Patterson found that “the Lexicon doesn’t purport to be a work of literary criticism or to constitute fair use on that basis’ and it’s lack of critical analysis…is not determinative of whether or not it’s purpose is transformative.”

After going through Patterson’s opinion, it sounds like he reached his decision for a few reasons:

• The Lexicon borrowed “wholesale” from JK Rowling’s 2 short companion books. Perhaps this decision would have been different if the Lexicon didn’t cite content from the companions so extensively.
• The Lexicon failed to enclose the passages cited from Harry Potter novels with quotations, making it unclear what is original or reproduced.
• Finally, throughout the entire opinion Patterson repeats numerous times how he found “substantial similarity” — which clearly swayed his overall decision as noted by the tone of the opinion. Perhaps this unduly led to the negative outcome for RDR Books.

Judge Patterson walks us through his review of the “fair use test”, beginning on page 41. Check it out below:

First it happened in Oregon, where the state claimed it violated copyright for websites like Justia to republish their law. According to TechDirt, “the state admits that the text of the laws are not covered by copyright, but that everything else about the way the law is presented is covered by copyright (such as the numbering, the notes and annotations).”

Now we have a case in California where the state made a similar claim regarding the presentation of their legal code. Local resident and activist Carl Malamud is scanning and posting online copies of federal, state and county codes, which is copyright infringement according to the state. Malamud’s next step is to take his case to court with the hopes of setting a precedent that would require state, federal, and county law to be free from copyright restrictions.

In reviewing Malamud’s website http://public.resource.org, I found that he’s actually digitizing and uploading the penal code as published by Lexis Nexis. While I think that Lexis Nexis has a strong case to argue that Malamud is infringing their copyright, I do hope that the courts will realize that it’s a complete disservice to the public that state and federal law is not freely viewable, searchable, downloadable, printable, and mashable online.

Judge Howard Lloyd of the U.S. District Court for the Northern District of California dismissed a copyright infringement case against Veoh, a video sharing site, ruling that the DMCA does not require such sites from reviewing the content they host for potential infringement. The judge said, “The DMCA was intended to facilitate the growth of electronic commerce, not squelch it. The court finds no reasonable juror could conclude that a comprehensive review of every file would be feasible.”

TechCrunch summarizes the court’s decision, saying that online video sites are protected under the safe harbor provisions of the DMCA if they:

• Provide adequate notice to users that uploading copyrighted material is prohibited
• Swiftly comply with DMCA takedown notices “on the same day the notice is received (or within a few days thereafter).”
• Use fingerprinting and other technology to detect copyrighted material, even if the methods are flawed.
• Take measures to control infringing users. Specifically, infringing accounts need to be terminated and the email banned from any new accounts. The court held that IP address banning was not neccesary: “…Io has presented no evidence suggesting that tracking (or verifying) users’ actual identity or that blocking their IP addresses is a more effective reasonable means of implementation.”
• Transcoding files to Flash format does not put the files in the site’s control; they are still protected by the DMCA safe harbor (see previous post).
• Sites are encouraged to spot check videos, and if they do, to remove content that is likely infringing.
• Sites are NOT required to check every video. The court said “this court finds no reasonable juror could conclude that a comprehensive review of every file would be feasible. Even if such a review were feasible, there is no assurance that Veoh could have accurately identified the infringing content in question.”
• It’s important to have lots of non-infringing content. The court noted that Veoh had received DMCA notices on only about 7% of its content. This helped its argument that it was different than Napster, which “existed solely to provide the site and facilities for copyright infringement…the sole purpose of the Napster program was to provide a forum for easy copyright infringement.”

This would appear to be a set back for Viacom in their case against YouTube. Viacom immediately released the following statement, which sounds like they are in complete denial:

“Even if the Veoh decision were to be considered by other courts, that case does nothing to change the fact that YouTube is a business built on infringement that has failed to take reasonable measures to respect the rights of creators and content owners. Google and YouTube have engaged in massive copyright infringement – conduct that is not protected by any law, including the DMCA.”

It’s unlikely that this is the end of the case, as this was simply a district court ruling and is likely to be appealed. It is, however, a win for websites who rely upon the safe harbor provisions of the DMCA. The full ruling is below:

Veoh v IO Group - Free Legal Forms

Erick Schonfeld at Techcrunch proposes a “Digital Bill of Rights” with:

The Right to Use and Reuse Content: Consumers know that digital copies of songs, words, and videos are qualitatively different than physical copies, yet copyright law treats them the same way. When the economics of scarcity no longer apply, consumers start to behave differently. They copy and reuse content in unforeseen ways. The pendulum has swung so far that normal consumer behavior has now been criminalized. The concept of fair use needs to be updated and clarified, while still balancing the fundamental right of copyright holders to profit from their creations.

This is precisely the reason I’ve started this site. What we’re experiencing today is a “systematic overclaming of copyright.” As a baseball fan, the one example that affects me every single day is Major League Baseball’s over-reaching claims with regard to baseball related media. MLB tried to claim that player names stats were copyrighted by MLB and others couldn’t use them without explicit permission, and on a daily basis the MLB removes both professional and amateur video clips from video hosting sites, even when the clips are short and probably pass the traditional ‘fair use’ test. Another great example is the Associated Press, which argues that you owe them a licensing fee if you quote more than 4 words from one of their articles (not to mention the fact they take their stories offline after 30 days for some bizarre unexplainable reason).

I believe that there are viable business models that can support fair use of electronic content, while providing value to both the copyright holder and the public. The struggles I mentioned above are largely caused by a conflict of interest — and the traditional media firms are going to have to rethink and adapt their business models if they want to thrive and succeed in today’s word — or else it we’ll just continue down this path where copyright holders harass and sue their customers to protect their outdated models and shrinking slice of the pie.

Last week the EFF achieved a victory against Universal Music when a judge ruled that Universal should have considered fair use before filing a DMCA take-down notice for the infamous Prince/baby-dancing video.

Because Universal Music reviewed the baby-dancing video in order to identify “Let’s go crazy” playing, the judge noted “that it wasn’t any sort of onerous burden to expect the copyright holder to make a fair use determination…to make sure it’s infringing in the first place.”

While it’s unlikely the courts are ready to penalize copyright holders for making an inaccurate claim (because of the subjectivity in determining fair use), this case should encourage organizations to think twice before making frivolous infringement claims when in fact the material in question makes fair use of the work.

I’m starting this blog to examine the increasingly complex world of copyright, fair use, and electronic publishing — and how it all relates to the general public (like me) and business. I am of course writing from my own perspective, not that of my employer, and I hope to disseminate the key ideas that influence and support fair electronic use of content (and supportive business models).