The Future of Internet Copyright: Recent Cases and Congress Presented by Wade Savoy
Future of Internet Copyrights: Recent Cases and Congress
Dec 12, 2014
Congress is currently considering whether copyright law needs to be overhauled for the digital era. Despite the explosion in innovation and creativity on the Internet since passage of the DMCA 15 years ago, tensions have been growing between content owners and technology providers, leading to high profile clashes that will impact the future of the Internet, innovation, and creativity. We will review ongoing Congressional hearings and recent cases that set the stage for these policy discussions and future legislation.
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Transcript
The Future of Internet Copyright: Recent Cases and Congress
Presented by Wade Savoy
2
Growing Tension
The Congress shall have Power . . . [t]o
promote the Progress of Science and
useful Arts, by securing for limited
Times to Authors and Inventors the
exclusive Right to their respective
Writings and Discoveries.
U.S. Constitution, Article I, Section 8
Wade J. Savoy
Can we insert an image or photo representing tension between two competing forces? The two forces here are technology companies and content creators, but that doesn't necessarily have to be reflect in the image. I don't mind something somewhat comical.
3
Road Map
Set the stage for reform
Congressional hearings
Copyright Act
of 1976
DMCA Cartoons SOPA
4
The Copyright Act of 1976
Wade J. Savoy
Need an image of an old-time alarm clock.
5
DMCA
Digital Millennium Copyright Act
Passed 15 years ago
Wade J. Savoy
If there are logos of major Internet companies that can be used in the context of this CLE (e.g., Google, Facebook, Twitter, Apple, iPhone, etc.), I'd like to insert a few here as examples.
6
DMCA
Digital Locks Safe Harbors
Wade J. Savoy
The main discussion here will be digital locks for imagery of protecting things with locks would be appropriate.
7
Online Service Providers
Life Before DMCA Safe Harbors
Content Owners
@
Tracking down service providers
Being ignored or slow responses
Reluctance to remove infringing materials
Inconsistent responses
Not copyright experts
Cannot afford to be copyright experts
Missing information
Liability from users
Direct liability? Contributory? Vicarious?
8
The DMCA Compromise
Notice requirements under section 513(c)(3):
Statements of good faith belief that the material is infringing, of the accuracy of the notice, and that the person complaining is authorized to act for the owner
Signature
Identification of the copyrighted work
Identification of the infringing material and where it’s located
Contact information for the complaining party
Wade J. Savoy
Image of a couple dancing elegantly?
9
DMCA in Context: Google
"How Google Fights Piracy"
In 2012, Google received requests to remove more than 57 million web pages from its search engine
Removal on average in less than six hours
10
DMCA in Context: MPAA
“Understanding the Role of Search in Online Piracy”About 80% from Google
11
Viacom v. YouTube (2012)
Do we really, really have to put YouTube on notice of every single infringement? Q
Yes.
Isn't general knowledge of all that infringement we all know is there enough?
Nope.
But why?
The magic dance we call the DMCA.
Q
Q
A
A
A
12
Second Source of Tension: Cartoons
Cartoon Networks v. Cablevision (2008)
Cablevision Warehouse
DVR
DVR
DVR
DVR
13
Cartoon Networks
Public performance? Copy?
Cablevision Warehouse
DVR
DVR
DVR
DVR
14
Cartoon Networks
Mai Systems v. Peak Computer (1993)
Cablevision Warehouse
DVR
DVR
DVR
DVR
15
WNET v. Aereo (2013)
Aereo Warehouse
DVR
DVR
DVR
DVR
16
WNET v. Aereo (2013)
Aereo Warehouse
DVR
DVR
DVR
DVR
Progress?
17
Third Source of Tension: Angry Mob
Stop Online Piracy Act (SOPA)
Wade J. Savoy
Please insert an b&w photo of an angry mob bearing torches (like in Frankenstein).
18
The Stage for Reform
Tensions between tech and content – promote what kind of progress?
Public directly engaged and implicated in copyright
Decline in public perception coupled with social media
19
Hearings
The Courts, Intellectual Property and the Internet Subcommittee of the House Committee on the Judiciary
“The goal of this hearing . . . will be to
determine whether the copyright laws
are still working in the digital age to
reward creativity and innovation. ” -- Chairman Goodlatte
Image courtesy of politico.com
20
First Hearing“A Case Study for Consensus Building:
The Copyright Principles Project”May 16, 2013
Testifying:
Jon Baumgarten Former General Counsel Copyright Office (1976-1979)
Prof. Laura GasawayUniversity of North Carolina School of Law
Prof. Daniel J. GervaisVanderbilt University School of Law
Prof. Pamela SamuelsonUniversity of California BerkleySchool of Law
Jule SigallAssistant General Counsel for Copyright, Microsoft
21
First Hearing
“The goal of the CPP was to explore whether it was possible to reach some consensus about how current copyright law could be improved
and how the law’s current problems could be mitigated.”
Report issued in 2010
Twenty five recommendations
THE © OPYRIGHT PRINCIPLES PROJECT
22
THE © OPYRIGHT PRINCIPLES PROJECT
First Hearing
Recommendation #1
Copyright law should
encourage copyright
owners to register their
works so that better
information will be
available as to who
claims copyright
ownership in which
works.
Recommendation #2
The Copyright Office should
transition away from being the
sole registry for copyrighted
works and toward certifying the
operation of registries operated by
third parties, both public and
private.
23
THE © OPYRIGHT PRINCIPLES PROJECT
First Hearing
Recommendation #5
A small claims
procedure should be
available for resolving
small-scale copyright
disputes.
Recommendation #21
Congress should limit
remedies as to those
who reuse in-copyright
works whose rights
holders cannot be found
after a reasonably
diligent search.
(Orphaned works.)
24
THE © OPYRIGHT PRINCIPLES PROJECT
First Hearing
Recommendation #10
If copyright law is to retain the
right to elect to recover
statutory damages in lieu of
actual damages, guidelines for
awarding statutory damages in
a consistent, reasonable, and
just manner should be
developed.
Recommendation #11
To give courts discretion to award up to
three times the amount of actual
damages and infringer profits in
exceptional cases as long as the
copyright owner registered the
infringed work(s) before the
infringement commenced. (Treble
damages.)
25
THE © OPYRIGHT PRINCIPLES PROJECT
First Hearing
Recommendation #6
Commercial use or
commercial effect
should be given weight
in assessing whether an
exclusive right has been
infringed.
Recommendation #18
Personal uses of
copyrighted works
should be privileged to
some degree.
26
THE © OPYRIGHT PRINCIPLES PROJECT
First Hearing
Recommendation #7
Copyright owners
should have the
exclusive right to
control communications
of their protected works
to the public, whether
by transmission or
otherwise.
27
The professors are ready for a major overhaul: “Next great Copyright Act”
Better registration system leveraging new technology
Focus on maximizing authorized uses rather than minimizing unauthorized uses
Orphaned work
Statutory damages
Safe harbors for consumers making ordinary uses of legitimately purchased works
Microsoft: DMCA is the right approach
First Hearing
28
CLE Certification Code: Rimonlaw1836
Send to [email protected]
Please email this code and the state in which you would like CLE credit to [email protected].
If you are seeking CLE credit in Louisiana, please also include your bar number and the date and time you viewed this presentation in your email.
29
Second Hearing: Content Owners
“Innovation in America: The Role of Copyrights”
July 25, 2013
Source: Getty Images
Sandra AistarsExecutive Director, Copyright Alliance
Eugene Mopsik Executive Director, American Society of Media Photographers
Tom HansenCo-Founder, Yep Roc Records/ Red Eye Distribution
John LaphamGeneral Counsel, Getty Images
William SherakPresident, Stereo D
Testifying:
30
Fair compensation
Combative, defensive tone
Love-hate relationship with technology
Economic viability of copyright owners drives innovation
Second Hearing: Content Owners
31
Second Hearing: Content Owners
Copyright works at its core
But concerned about
Expansion of fair use Ease of file sharing
Stronger statutory damages provisions
Cutting off ad and credit card revenue to
infringing sites
Search engines
1 2 3
4 5
32
Small claims system
Second Hearing: Content Owners
Better, easier registration
system needed
33
Third Hearing: Tech Companies
“Innovation in America: The Role of Technology”
August 1, 2013
Testifying:
Danae RingelmannFounder & Chief Customer Officer, Indiegogo
Jim FruchtermanPresident and CEO, Benetech
Nathan SeidleCEO, SparkFun Electronics, Inc.
Van LindbergPV Intellectual Property, Rackspace
Rakesh AgrawalFounder & CEO, SnapStream Media
34
Third Hearing: Tech Companies
A new attitude about intellectual property:
Innovation (i.e., progress) is not dependent on intellectual property.
Make money by innovating and iterating.
Don’t enforce, compete.
Intellectual property is not the only option.
One business model should not be baked into the Copyright Act.
Law should not focus just on traditional creators.
Scrap copyright law altogether?
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