Copyright Legislation Prospects

Both the House and the Senate have presented bills in the past year that, if passed, would introduce increased liability to copyright infringers on the internet. The bills have had deeply different receptions amongst industries affected by copyright law. The entertainment industry steadfastly supports increased attempts to control copyright infringement while many in technology and computer industries believe the bills overstep necessary enforcement strategies and will negatively affect their ability to carry on their business as usual.

The Senate bill was introduced in May and is called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act). The entire text of the bill can be found here. The act creates a right of action for infringement against domain name owners of websites that are found to be "dedicated to infringing activities." S. 986, 112th Cong. § 3. The act goes on to note that Internet Advertising Services and Information Location Tools have a responsibility not to facilitate access to infringing websites. This could mean that Google and other search engines would be held liable when their search engines provide users with links to websites that contain infringing material. Not surprisingly, this portion of the act is particularly controversial because of the huge costs it would impose on search engines. Additionally, the act repeatedly notes that it is applicable to direct, various, and contributory copyright infringement; hinting at the idea that websites that may only tangentially have an effect on copyright infringement might now be subject to lawsuits.

The PROTECT IP act would also implement important measures to more effectively crack down on websites with infringing material that threaten the public health. These type of websites are generally fraudulent pharmaceutical websites that infringe on company copyrights and trademarks to illegally sell prescription drugs. S. 986, 112 Cong. § 5. Despite the Act controversy, The Senate Judiciary Committee approved the PROTECT IP act but it has yet to make it to the floor of the Senate as it was blocked by Senator Ron Wyden.

In coordination with the Senate's act, the House introduced the Stop Online Piracy Act (SOPA) at the end of October. The text for that bill can be found here. The provisions in this Act overlap with PROTECT IP and are opposed or supported by the same industries. Website and domain name owners are additionally worried about SOPA because of its broad language that would not give possible contributory infringers reasonable time to clean up their website before either being sued or having their site attacked. The House of Representatives Judiciary Committee will hold a hearing on the Act this Wednesday, at which time the proponents and opponents of the bill will have a chance to try to integrate their opposing views into the bill.

For more information on the passage of these bills, see The Stop Online Piracy Act: Big Content’s full-on assault against the Safe Harbor, House Hearing on Stop Online Piracy Scheduled.

Reddit's Right in a Movie Script?

An unknown author writes a script that gets purchased by a major production company. It sounds like a fairly straightforward story and licensing deal, right? Not for James Erwin who wrote "Rome, Sweet Rome" a story about a modern day U.S. Marine who goes back in time to fight in Ancient Rome. Erwin then sold the exclusive movie rights to Warner Brothers. However, this deal presents some interesting copyright issues because Erwin originally shared his ideas for "Rome, Sweet Rome" on Reddit, a social news website whose content is entirely user created. In addition to publishing his story here, user content was contributed by the community and arguably used by Erwin to finalize his story.

Reddit has a stake in Erwin's deal because of the User Agreement that all Reddit users agree to when they join the website community. The agreement specifies that users "agree that by posting messages, ... or engaging in any other form of communication with or through the Website, you [the user] grant us [Reddit] a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, ... distribute, ... or sublicense any such communication in any medium ... and for any purpose, including commercial purposes, and to authorize others to do so." This presents the possibility that Reddit could now turn around and sell the portions of "Rome, Sweet Rome" divulged on the website. Section 205(e) of the Copyright Act states that a "nonexclusive license ... prevails over a conflicting transfer of copyright ownership" which seems to indicate that Reddit could legally license away the movie rights to "Rome, Sweet Rome," specifically the portions of the story and feedback trading on Reddit.

James Erwin, per Warner Bros. advice, has since removed "Rome, Sweet Rome" from Reddit and Reddit has not made any public efforts to sell its rights in the script. However, Reddit is operated by Advance Publications, a subsidiary of Conde Nast Publications. This means that they might be more likely than a small, independent website to license rights out to test the legal waters on the issue.

Regardless of whether Reddit acts on "Rome, Sweet Rome," it brings about an interesting issue of the rights of nonexclusive rights of licensees and licensors. For more on this story, see Does Warner Bros. Really Have Exclusive Movie Rights to a Story Posted on Reddit?

MPAA Brings Copyright Case Against Hotfile

The Motion Picture Association of American filed a suit against Hotfile.com last Tuesday, February 8 for copyright infringement. Hotfile is a cyberlocker website in which users gain access through paid subscriptions. The MPAA alleges that not only does Hotfile aid users in uploading copyrighted information but that they encourage users to disseminate the uploads they have gotten through the site. The claim targets Hotfile instead of other file sharing websites because the MPAA believes Hotfile discourages personal filesharing by incentivizing popular files. Because Hotfile has membership fees, MPAA alleges that the website is also profiting from the infringement of its users.

Curiously, the MPAA did not also file claims against other online locker services like Rapidshare and Megaupload. This is because the MPAA does not contend that all file lockers are unlawful. The distinction is defined by the Digital Millennium Copyright Act's safe harbor clause. The act protects Internet service providers that obey certain rules of sharing, but MPAA believes Hotfile is not following the rules, and instead is encouraging breaking the law. The case will bring online locker services and their legality under fire as they have become a more popular way for people to gain access to files, some copyrighted, on the Internet.

MPAA's complaint against Hotfile

"Hope" Poster Dispute Settled

The dispute over the creation and use of the Obama "Hope" poster was recently settled.

In Fairey v. AP, as previously mentioned on this blog, the Associated Press had accused the artist Shepard Fairey of infringing its copyright on a photograph of Barack Obama by creating the popular "Hope" posters that were frequently seen during the 2008 presidential election campaigns. Fairey claimed that the poster he designed was fair use.

The case was particularly interesting because it nicely demonstrated the complexities of giving copyright protection to photographs. The issue is that a copyrighted work must be original, in the sense that the work must originate with the author of the work. This means that you cannot copyright facts, because facts are not independently created by the author; they are part of the state of the world. For example, the AP cannot copyright the fact that Obama was at the National Press Club or the fact that he was sitting in a certain seat, looking in a certain direction. Because a photograph necessarily encompasses facts such as these, courts are careful when it comes to photographs. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (giving copyright protection to photographs of Oscar Wilde).

One way to distinguish uncopyrightable facts from copyrightable original works is to identify the original contributions of a photographer. See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2006). When creating a photograph, a photographer has many opportunities to be original; she can select the content, choose a camera angle, pose the subject, time the picture, frame the subject, and add lighting. Each of these elements of a photograph can be given copyright protection.

Why is any of this important to the Fairey v. AP case? Because if a court had decided that Fairey had only copied the fact that Obama was sitting in a certain spot, looking a certain way, then he was unlikely to be liable for copyright infringement. Similarly, if a court had decided that Fairey had taken only a few of the copyrighted elements of the AP photograph, it would have supported a finding of fair use and could also have made him not liable for infringement. Because the AP has settled the dispute with Shepard Fairey, these issues might go unanswered for a while.

Then again, the AP has not yet settled a related case against Obey Clothing, where a company was manufacturing T-shirts and other apparel that bore the "Hope" design. The details of giving copyright protection to photographs could become an issue for AP and Obey Clothing as that case progresses.

Source: Shepard Fairey and The A.P. Settle Legal Dispute [NYT]

Joker Obama: Copyright Infringement or Political Parody?

It’s certainly no joke. Yet another image of Obama has stirred up “copyright infringement concerns,” according to the photo-sharing website Flickr. This time, the image features U.S. President Barack Obama painted with the Joker’s clown makeup from the movie, “The Dark Knight.” Firas Alkhateeb, a 20-year-old college student from Chicago, created the image by using Adobe Photoshop to “Jockerize” the Obama photo. During the time that the Obama-Joker photo was hosted on Flickr.com, it generated over 20,000 pageviews until Alkhateeb received an email from the website informing him that the photo had been removed due to “copyright infringement concerns.” Now, many are lashing out at the website, insisting that image constitutes fair use as a political parody, a protected form of free speech. For this reason, there has been much controversy over whether Flickr’s removal amounted to political censorship.

More about this story can be found at LA Times.

It's All About Change: Fairey v. AP

Did Shepard Fairey, creator of the ubiquitous images that formed a central part of the Obama campaign, change a photograph by an Associate Press photographer enough to qualify for a fair use defense?

A federal judge in Manhattan will ultimately decide the issue, but both images are posted here so that you can draw your own conclusions (courtesy of the NY Times). Fairey has asked the court to grant a declaratory judgment against any potential copyright infringement claims advanced by the AP.

More about the case can be found via the New York Times, WSJ's Law Blog, and Am Law Daily.

HLS Professor Challenges the Constitutionality of RIAA File-sharing Lawsuits

Joel Tenenbaum, a graduate student from Harvard, is just one of the random assortment of individuals being sued for sharing music via peer-to-peer application.

For Harvard professor Charles Nesson this lawsuit was the last straw. He is defending Tenenbaum, and has filed a counterclaim against the specific plaintiff and against the RIAA, challenging the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, upon which the suit was filed.

This act is one of several legslative initiatives designed to provide a stronger protection to copyright owners in the digital age. Nesson claims the act has basically made the courts “a low-grade collection agency” for the RIAA. Suits are being brought randomly, singling out few out of the many Americans who use peer-to-peer networks, and seeking to punish them beyond any relation to the damage that they have allegedly caused. Many of these suits lead in fact to significant results for the RIAA in outside the court settlements, only because their targets do not have the resources to defend themselves in court.

Prof. Nesson’s ultimate goal is to drive the music industry to find new ways of distributing music in the digital age and encourage the legalization of the phenomenon of sharing of music on-line.

This is not the first attempt to render copyright legislation excessive and unconstitutional, so expectations should be reduced for Prof. Nesson. However, questioning the RIAA strategy may have the power to drive a change in the arena of on-line music consumption.

Read more:
Eon (Charles Nesson’s blog): The Copyright Theft Deterrance Act of 1999
Computerworld: Harvard professor offers new challenge to RIAA antipiracy campaign

The Digital Millennium Copyright Act Turns 10

October 28th marked an important anniversary for the digital IP community, as the Digital Millennium Copyright Act celebrated its tenth birthday. For a birthday present, the Electronic Frontier Foundation issued a scathing report, arguing that the law has been unjustly applied against "consumers, scientists and legitimate competitors."

The DMCA, designed to protect copyrights in the digital age, bans circumvention of digital rights management and other technological protection measures in return for limited safe harbors for ISPs who comply with the law's notice-and-takedown provisions.

The Act remains highly controversial, challenged from the perspectives of practical aspects as well as policy considerations. The EFF report claims that the act has failed to prevent digital piracy, and has instead succeeded in creating severe side-effects--such as harming fair use, free speech, scientific research, technology progression and legitimate competition.

You can access the EFF's full report here: http://www.eff.org/deeplinks/2008/10/dmca-ten-years-unintended-consequences

Is Google Books Fair Use? We May Never Know.

Instead of battling it out in court, Google has agreed to pay $125 million to settle two copyright lawsuits by publishers and authors over Google Books. The deal will make millions of books searchable and printable online, although downloads of copyrighted material are going to cost you.

The settlements requires Google to obtain content owners' permission before publishing snippets for in-print books, although pages of text from out-of-print will still be available. Unfortunately for copyright scholars, this part of the settlement precludes a court decision about whether such snippets constitute "fair use"--a subject that has inspired a great deal of debate since Google Books launched in 2004 (see here for comments from the pro-fair use crowd (check out the video!), here for an argument that more legislation is needed in this area, and here and here for a more detailed analysis).

Here's the full story, including more details about the settlement. Google's press release about the deal can be found here.

Sony accuses Rev. Phelps of copyright violation for online video parody

This week, Sony/ATC Music Publishing in New York City wrote to Rev. Fred Phelps and his church group, known for picketing soldiers’ funerals across the nation, telling them to stop what it claimed was “unauthorized use” of the song “Holding Out for a Hero,” featured in the 1984 film “Footloose.” Sony accused Phelps and the Westboro Baptist Church of violating copyright laws with their online video parody, “There Are No Heroes.”

The video highlights the church’s controversial stance against homosexuality in connection with the belief that soldiers’ deaths in the Iraq and Afghanistan wars serve as God’s punishment for the U.S. tolerating homosexuality.

Fred Phelps’ daughter and the church’s attorney said the group will continue hosting its video of the song on its Web site. She maintains that Sony “said in their letter that it is a parody, but they lost their perspective. They hate these words. We said plainly there are no heroes and that is what the song is about. Under the fair use doctrine, this is proper for us to do.”

Phelps responded to the letter from Peter Brodsky, Sony’s executive vice president for business and legal affairs, this past Friday, claiming that Westboro’s use of the song is exempt from copyright laws because the video is a parody.

This is the second time in recent years that a music company has accused Phelps and his church of copyright infringement. Last year, Warner/Chappel Music Inc. in Los Angeles viewed the group’s parody of “God Hates the World,” to the tune of “We are the World” as a violation of its copyright.

Find this article in Business Week. Further details on this story and a link to the “There Are No Heroes” video can be found here.

Analysis: The Politics of IP Law

Apparently, politics and intellectual property are more related than I thought! Two articles this week discuss the role of YouTube in the presidential campaign.

A Wired article describes the problem of DMCA notices in the political context. The McCain campaign, which has seen several videos yanked from YouTube based on alleged DMCA violations, has asked the site to commit a full legal review of all take-down notices for content posted by political candidates and campaigns.

In the New York Times, Prof. Lawrence Lessig explains that the use of excerpts from debates and interviews should be considered fair use when employed to create political advertisements. Instead of relying on the existing nebulous fair use analysis, however, Lessig suggests that copyright law be revised to clearly exclude political content. Otherwise, Lessig says, free speech will be unjustly stifled. The editorial can be found here.

Background:

The Supreme Court has hinted that the fair use doctrine is necessary to reconcile the inherent tension between the Copyright Clause and the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (describing copyright law as "the engine of free expression"). This doctrine is particularly well-developed within the Second Circuit, which has explained that the role of the fair use doctrine is to balance "the public interest in the free flow of ideas with the copyright holder’s interest in the exclusive use of his work.” Warner Bros., Inc., v. Amer. B’casting Co., Inc., 720 F.2d 231, 242 (2d Cir. 1983). Thus, where matters of public interest are concerned, courts have held that the importance of the public’s right to full information may outweigh the content owner’s profit interest. See, e.g., Time, Inc. v. Bernard Geis Asscs., 293 F. Supp. 130 (S.D.N.Y. 1968) (holding the reprint of video stills from President Kennedy’s assassination to be fair use).

The notion of fair use has often come into conflict with the Digital Millennium Copyright Act (DMCA), passed in 1998 to prevent copyright infringement on the Internet. The DMCA set up a notice-and-takedown system, requiring those who believed their rights were infringed to notify a website. So long as the site removes the offending content, it avoids liability. In order to have their content allowed back on the site, posters must affirmatively challenge the DMCA claim. Because this encourages sites to remove content first and ask questions later, this system has been subject to criticism on First Amendment grounds (see the EFF's site for more).

Political advertisements fall in an interesting area of First Amendment doctrine. In general, political speech receives the highest degree of First Amendment protection, because it is at the core of a democratic society. Commercial speech, however, may be subject to greater restrictions. In its most recent decision dealing with campaign advertisements paid for by third parties, the Supreme Court declared, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." See FEC v. Wisconsin Right to Life, 551 U.S. __ (2007).

Analysis:

Although the removal of political advertisements mid-campaign is troubling, there is an easy solution to the McCain campaign's soundtrack problem--buy a license to use the songs! We have a mandatory licensing scheme for music in the U.S., and those who wish to use the creative works of others should pay them for it. Moreover, a use will not be "fair" when it affects the licensing market for a work, which unfettered access to the works of others may well do. It is one thing when a creator makes a mashup for fun and posts it on YouTube, but here we are dealing with presidential campaigns that have millions of dollars to spend. Licensing fees tend to be quite reasonable, so is it really too much to ask campaigns to pay them? Feel free to disagree with me the comments.

The use of debate clips and interviews is more problematic. Although most courts would find it to be fair use, the DMCA system allows websites--not courts--to make the initial call. Websites have every incentive to err on the side of caution, and remove the content from their sites. For this narrow use, I believe Lessig's suggestion is an important one to consider.

Video: William Patry on Internet Metaphors

William Patry, copyright blogger and Senior Copyright Counsel at Google, spoke about "Internet Metaphors and Why we Need to Lose Them." Mr. Patry explained that because judges have absorbed language in which the Internet is described as a "place" you can visit, courts have often come to the wrong conclusion.

Mr. Patry also countered Prof. Werbach's suggestion that Google had "no idea" how to make YouTube profitable. "I don't think we'd pay $1.65 billion dollars ... being clueless about how to [make a profit]." Mr. Patry said the plan for the site was to engage in more licensing deals.

Click below for the full video:

Video: Kevin Kuzas of Comcast Interactive Media

Kevin Kuzas, VP and General Counsel of Comcast Interactive Media, delivered a keynote address entitled "Copyright Challenges in Internet Video." Mr. Kuzas spoke about the issues faced by those trying to license video for the Internet. CIM runs Fancast, an Internet video site which hosts content licensed from Viacom and other content providers.

For the full video, click below:

Video: Panel on User-Generated Content

Our first panel of the day was titled "User-Generated Content: Cooperation or Litigation?" Topics included the Viacom-YouTube lawsuit, the validity of litigation in creating beneficial legal precedents, and the impediments to full cooperation between content owners and content providers. For the full video, scroll down to the bottom of this post.

Kevin Werbach asserts that "YouTube doesn't even know how it's going to make money" as Google's Bill Patry looks on.

Viacom's Stanley Pierre-Louis (right) discusses his company's recent initiatives to add online content. Professor Michael Carroll of Villanova (left) listens.

Kevin Werbach of Wharton (center) registers his objection to the term "user-generated content" when describing copyright infringement problems caused by sites like YouTube.

Video, Part 1:



Video, Part 2:


The panelists, seated from left to right, were:
• Michael Carroll, Professor of Law, Villanova School of Law
• Stanley Pierre-Louis, VP and Associate General Counsel, Viacom
• Kevin Werbach, Assistant Professor of Legal Studies, Wharton
• Lance Koonce, Partner, Davis Wright Tremaine
• Gideon Parchomovsky, Professor of Law, UPenn Law (moderator)

Blogging the Symposium: Government Role in IP

The third panel featured a lively debate on the proper role for the government in enforcing intellectual property rights. In particular, discussion focused on the PRO-IP act, a controversial bill which had proposed increased damages for infringement and a new government bureaucracy to ensure the protection of copyright.

Sherwin Siy, above left, discussed the recent markup of the bill, which moved out of subcommittee only after the provision to disaggregate damages was struck.

Many of the questions focused on whether it was proper for the government to spend a significant amount of money to protect a private right. Prof. Post pointed out that the nature and protection of property rights changes with technology, noting that at one point flying an airplane over one's land was considered a trespass. The government, he said, should not be in the business of protecting outdated business models. From the audience, Prof. Parchomovsky, the moderator from the first panel, questioned whether the benefits would outweigh the costs of such a proposal.

Charles Sanders (far left) said that less protection for artists would lead to the decline of professional artists in favor of amateurs, countering a comment by Prof. David Post (far right) that people create even in the absence of an ability to make money. There may be more works of art than ever, Sanders said, but they are not of the same quality as professional products. Also pictured are Sherwin Siy and Sigal Mandelker from the DOJ. Ms. Mandelker opposed the creation of a new government office for copyright, noting that the DOJ has already been prosecuting large-scale infringers.

Prof. Christopher Yoo (far left) moderated debate between Mr. Sanders and Prof. Post. Mr. Sanders told Prof. Post that if they sat down and talked, they would probably agree 98% of the time. Prof. Post said if that was true, he would buy him a beer--by the end of the panel, it became clear that no beer would be forthcoming. They did agree, however, that the music industry needed to adopt a new business model in the face of changing technology.

Blogging the Symposium: Filtering and Fair Use

The second panel focused its discussion on whether current methods to control copyright infringement, especially filtering and DMCA takedown notices, unduly impinge on fair use. David Sohn voiced concerns that the filtering technology would be unable to recognize content that would be considered fair use. The panel also considered whether the current fair use is working, and agreed that although it is an imperfect system, it's the best we've got. Kathleen Carignan said that it would be easier if things could categorically be determined to be fair use, but the factors test is necessary to ensure that the use is indeed "fair."

ABOVE, LEFT: Gregory Marchwinski of Red Lambda, a manufacturer of filtering software, and the rest of the panel listen to a question from the moderator. ABOVE: Jennifer Pariser of Sony explains why copyright infringement harms the music industry. Also pictured are Gregory Marchwinski (left) and David Sohn of the Center for Democracy & Technology (right).

Robert Terrell (right) explains how the University of Pennsylvania responds to DMCA takedown notices while David Sohn (left) and Kathleen Carignan of Philadelphia Volunteer Lawyers for the Arts look on.

Moderator R. Polk Wagner, far left, and the full panel.

For more on this panel, see Sherwin Siy's commentary here.

Copyright & the Internet Symposium

March 20, 2008--Yesterday, PIPG hosted notable scholars, practitioners, and policy advocates at its inaugural symposium, entitled “Copyright & the Internet: Solutions for a Digital World.” The discussion focused on the entertainment industry's ability to respond to challenges posed by mass copyright infringement on the Internet, the use of filters, and what role, if any, the government should play in protecting copyrighted works.

In the upcoming days, we will post commentary and pictures from the event. The full schedule was as follows:

Panel 1: “Industry Response to User-Generated Content: Cooperation or Litigation?”
Moderator: Prof. Gideon Parchomovsky
Panelists:
• Michael Carroll, Professor of Law, Villanova School of Law
• Lance Koonce, Partner, Davis Wright Tremaine
• Stanley Pierre-Louis, Vice President and Associate General Counsel, IP and Content Protection, Viacom
• Kevin Werbach, Assistant Professor of Legal Studies, Wharton

Featured presentations
• Kevin Kuzas, VP and General Counsel, Comcast Interactive Media
"Challenges in Internet Video"
• William Patry, Senior Copyright Counsel, Google Inc.
"Internet Metaphors and Why We Need to Lose Them"

Panel 2: “Can Copyright and the First Amendment be Reconciled in the Internet Age? Filtering, Takedown Notices, & the Role of Fair Use”
Moderator: Prof. R. Polk Wagner
Panelists:
• Kathleen Carignan, Director, Philadelphia Volunteer Lawyers for the Arts
• Gregory Marchwinski, CEO, Red Lambda
• Jennifer Pariser, Executive Vice President, Sony/BMG
• David Sohn, Senior Policy Counsel and Director, Project on IP and Technology, Center for Democracy & Technology
• Robert Terrell, LAW ’86, Associate General Counsel, UPenn

Panel 3: “Government Involvement in Copyright Regulation: Discussing the U.S. Role in Monitoring IP Infringement Online”
Moderator: Prof. Christopher Yoo
Panelists:
• Sigal Mandelker, LAW '00, Deputy Asst. Attorney General, DOJ
• David Post, Stern Professor of Law, Temple's Beasley School of Law
• Charles J. Sanders, Counsel, Songwriter's Guild of America
• Sherwin Siy, Staff Attorney and Director, Global Knowledge Initiative, Public Knowledge

PIPG would like to thank Hogan & Hartson for its generous support.