Does New Legislation Aimed at Reducing Online Intellectual Property Infringement Go Too Far?

November 14, 2011

240px-Censored-rubber-stampsvg-Two related bills aimed at curbing rampant copyright and trademark infringement on the Internet are currently pending before the House and Senate.  While the bills have been endorsed by the RIAA and MPAA and have strong bipartisan support in Congress, they have come under fire by mainstream media and civil liberties groups who believe the bills would shift too much responsibility onto ISPs, advertisers, and payment processors while also giving the U.S. government and trademark and copyright holders too much power to block allegedly infringing websites without sufficient due process. The Senate PROTECT IP Act of 2011 (S.968) The bills began in the Senate, where Senator Patrick Leahy (D-VT) introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” or the PROTECT IP Act (“PIPA”) in May of 2011 (S.968). The PROTECT IP Act would establish a system where the Justice Department could take down websites dedicated to copyright-infringing or counterfeit activities, including sites that solely promote distribution of illegal copies, counterfeit goods, or anti-DRM technology.  The Act would give the DoJ the ability to obtain court orders preventing financial transaction providers, Internet advertising services, Internet service providers, and information location tools from linking to or processing financial transactions to or from the “rogue site.” Trademark and copyright holders would also be able to apply for a court injunction against the domain name to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the website, if they have been harmed by the activities of the rogue website. The PROTECT IP Act was recently reviewed by the Senate Judiciary Committee and is still pending in the Senate. The House E-PARASITE Act (H.R.3261) The “Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation,” or E-PARASITE Act, was introduced on October 26, 2011 by Rep. Lamar Smith (R-TX) (the bill was formerly known as the Stop Online Piracy Act, or SOPA) (H.R.3261). The E-PARASITE Act would authorize the DoJ to initiate federal court procedures against criminal activities conducted on foreign infringing sites engaging in copyright infringement, counterfeit goods, or theft of trade secrets.  Again, courts could issue orders to ISPs, payment network providers, search engines, and advertising services to take “technically feasible and reasonable measures” to prevent access to the rogue site. Similar to the PROTECT IP Act, trademark and copyright holders would use a process similar to the Digital Millennium Copyright Act (DMCA) to seek limited injunctive relief against the rogue site. The E-PARASITE Act was recently sent to the House Committee on the Judiciary where it was referred to the Subcommittee on Intellectual Property, Competition and the Internet. Proponents and Critics Proponents of the bills, including the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), maintain that the legislation is vital in order to address the widespread copyright and trademark infringement on the Internet.  See, for example:

There are also numerous critics of the bills who are concerned about the suppression of speech without due process and the effect of the bills on the Internet’s infrastructure, among other issues.  See, for example:

Princeton University Joins the Open Access Movement

October 24, 2011

200px-Closed-Access-logo-alternativesvg-The Open Access Movement is the name given to the trend among academics to retain copyrights in their scholarly work rather than assign them to a journal or other publishing entity.  One of the primary driving forces behind the movement is the desire to freely share information without pay-walls or other barriers. Princeton University recently joined this movement by formally adopting an open access policy for scholarly work produced at the university (see “Princeton University Faculty Commit to Open Access” and “Open access policy adopted”).  Under this policy, the faculty agreed to grant the University a “nonexclusive, irrevocable, worldwide license to exercise any and all copyrights in his or her scholarly articles published in any medium, whether now known or later invented, provided the articles are not sold by the University for a profit, and to authorize others to do the same.”  The policy is based on recommendations from a proposal (pdf) presented by the university’s Ad-hoc Faculty Committee to study Open Access earlier this year. Princeton joins several other universities who have similar open access policies.  Many of these universities recently formed the Coalition of Open Access Policy Institutions (“COAPI”), which hopes to “collaborate and share implementation strategies and advocate on a national level for institutions with open access policies.”

Sharing By College Students: The UNC Approach

September 27, 2011

Article: At the Chronicle Of Higher Education website, Alex Campbell reports that UNC has put in place measures to prevent and minimize unauthorized file sharing by students. Specifically, computers that have file sharing software will not be allowed to connect to the campus network unless and until that student/computer is awarded a “hall pass.” This hall pass involves a student pledge to report illegal file sharing, and apparently some education on copyright law. Interesting Quote:

The university has already seen a big drop in the number of dorm computers that use file-sharing software, from about 1,000 last year to about 50 this year. Of those 50, about half have opted for the hall pass. The other half remain quarantined and unable to access the network, officials say.

Intel Spends $30M On Open Source University Computer Centers

September 13, 2011

From: An August 3, 2011 Intel press release:

These centers represent the next $30 million installment of Intel’s recently announced 5-year, $100 million ISTC program to increase university research and accelerate innovation in a handful of key areas. As with previously announced ISTCs for visual computing and secure computing, the new centers encourage tighter collaboration between university thought leaders and Intel. To encourage further collaboration, the ISTCs use open IP models with results publically available through technical publications and open-source software releases. (emphasis added)

Question: Much open source software has restrictions attached to it. Is it prudent to put legal oversight on these sorts of computer centers to make sure third part “open source restrictions” are complied with? Maybe this depends upon whether these computer centers will ever generate commercial software, or whether they will always remain uncommercialized.

YouTube and False Copyright Infringement Claims

August 29, 2011

200px-Copyrightsvg-Today, most universities and colleges have their own YouTube channel where they host videos about the institution, faculty, and students.  These videos often let prospective students interact with the institution in ways not previously possible.  While the copyright status of university-created and –uploaded videos is usually obvious, recent events have shown that any YouTube channel can fall victim to false copyright infringement claims. On August 29, 2011, numerous videos from the official YouTube channels of musicians Justin Bieber, Lady Gaga, Rihanna, and others were removed by YouTube as the result of copyright infringement claims submitted by an entity called “iLCreative.” Like most online content hosts, YouTube has procedures in place that allow copyright holders to notify the host that another person has uploaded content that infringes their copyright.  Section 512 of the Digital Millennium Copyright Act, or DMCA, provides an exemption to online service providers from claims of copyright infringement if the provider puts notice and takedown procedures in place.  YouTube makes the procedure particularly easy with a Copyright Complaint Form that guides the copyright holder through the process. Unfortunately, while claimants must state under penalty of perjury that they are the actual owner of the rights in question and that the use complained of is not authorized, service providers are not arbiters of copyright claims and must respond in an automated fashion rather than analyzing the merits of each claim.  Once YouTube receives a claim, it then notifies the content provider who can provide “counter-notice” that the material does not infringe copyrights. Submitting false copyright infringement claims can have serious consequences.  Anyone submitting a claim must have a YouTube account, and false claims can result in termination of that account.  Further, section 512(f) of the DMCA subjects anyone who makes false copyright infringement claims to liability for damages, although identifying the individual and proving damages can be challenging. Shortly after they were taken down as a result of the false copyright claims, the music videos by Justin Bieber, Lady Gaga, and others were returned. The Take Home Message If your YouTube video or other online content is removed due to a copyright infringement claim, don’t panic.  Confirm that you own the copyrights or have authorization to use the content in question, and work with the service provider to return the content to the site.  In many cases the content will be returned in a matter of hours or days.

Common Law Copyright Protection of Old Sound Recordings

August 26, 2011

Sitting in the archives of many university libraries are old analog sound recordings stored on formats such as phonograph cylinders (the “Edison cylinder”) or vinyl records.  Due to a recent decision by the New York Court of Appeals, efforts by universities to digitize even the oldest of these recordings – dating back 100+ years – have been severely hampered due to copyright protections. The 1971 Sound Recording Amendments On February 15, 1972, federal copyright law protected sound recordings for the very first time via enactment of the Sound Recording Amendments to the 1909 Copyright Act.  However, the protection did not extend to recordings fixed prior to that date, leaving state law as the only protection for pre-1972 sound recordings.  Indeed, per the amendment federal copyright law does not preempt state common law or statues regarding pre-1972 sound recordings until February 15, 2067. New York Common Law Copyright Protection New York is one of several states that provides common law copyright protection for pre-1972 sound recordings (as well as several statutory bases for protection which are not discussed here).  In a 2005 decision, the New York Court of Appeals held that the Copyright Act does not preempt New York common law protection pre-1972 sound recordings, and that the common law protection extends to these works until the date of federal preemption in 2067.  Capitol Records, Inc. v. Naxos, 4 N.Y.3d 540 (2005).  In 2067, the oldest of these sound recordings will have enjoyed more than 180 years of copyright protection. The Copyright Office to the Rescue? In light of the strong common law protection for pre-1972 sound recordings, universities and other non-profits engaged in digitizing projects are hesitant to publish the digital files, potentially relegating these treasures to the depths of university libraries until 2067.  However, a solution could come from the Copyright Office itself.  The Office has recently held hearings on the issue of whether to federalize pre-1972 sound recordings, thereby preempting state common law much earlier than 2067.